35 P. 711 | Idaho | 1894
This action was brought by the respondent, to recover $1,842.25, alleged to be due upon contracts for certain work done and performed upon a certain ditch, designated as “Indian Ditch,” and for the further sum of $1,050, damages alleged to have been sustained by reason of appellant’s fail
Appellant’s first contention is that the court erred in permitting a certain contract signed by one F. D. Toms to go to the jury. It is urged that the respondent alleged in the complaint, in his second cause of action, that, the contract sued on was signed by James A. Murry, J. J. Cusick and F. D. Toms, and that it was reversible error to admit a contract signed by I'. D. Toms only, in support of that allegation. The allegations of the complaint that, immediately after the execution of said contract by Toms, Cusick and Murry, said Toms, Cusick and Murry, and other persons unknown to the plaintiff, incorporated the defendant company and became the stockholders thereof; that appellant company adopted said contract, and that the plaintiff continued to, and did, perform the work to be performed by him thereunder; that said contract was in writing, and in possession of appellant; and that the plaintiff could not produce it, and therefore could not attach a copy thereof to his complaint — are not denied by the answer, and were therefore admitted, and required no proof. (Lillienfhal v. Anderson, 1 Idaho, 673.) The contract was admitted in evidence to prove undenied allegations of the complaint, and in no wise misled or prejudiced the defense of appellant. The substantial rights of appellant were not, and could not have been, affected by the alleged error. Section 4231 of the Revised Statutes of 1887 provides that all errors or defects in pleadings or proceedings which do not affect the substantial rights of the parties must be disregarded, and no judgment should be reversed because of any such errors or defects. The only error made in this matter was the admission of evidence to prove a fact which was admitted by the answer.
The second error assigned is that the evidence is not suffi-. cient to support the judgment; and under this head it is con
Respondent contends that this appeal was for delay, and demands the penalty prescribed by rule 9 of this court; but we do not feel warranted in holding that this appeal was manifestly for delay, and allowing damages at the rate of twelve per cent upon the amount of the judgment, as prescribed by rule 9 of this court, but it evidently is very close to the line. The judgment of the court below is affirmed, with costs in favor of respondent.