10 Utah 210 | Utah | 1894
Lead Opinion
This action is to recover the sum of 12,325.26, alleged to be due plaintiff from the defendant upon a' certain assigned account, which was assigned to plaintiff by Taft & Kropfganz. The money was due Taft & Kropfganz as balance on the contract price of building a house for defendant. After the assignment was made, defendant agreed with plaintiff that he would pay plaintiff any balance that might be due the contractors, after paying all subcontractors and material men who had or might obtain liens on the house. There was a balance at the time due the contractors, of $2,320.80, subject to the claims of subcontractors and material men. A few days afterwards, defendant paid to certain parties, claiming to be subcontractors and material men, this entire sum, leaving nothing for plaintiff. Among others, defendant paid to Mason & Co. $1,844, claimed to be due for lumber used in the construction of the house. He also paid Irwin & Buse $100, claimed for material. The whole controversy alises as to these two payments. The plaintiff claims that they were not claims for which liens could legally be obtained against defendant’s house.
On behalf of the plaintiff, John 0. Taft, - one of the
These rulings present the first question for our consideration. It will be seen that this testimony was received to show that no more than $1,546.60 worth of lumber •from Mason & Co. was used in building the house -of defendant, and this was the only testimony of plaintiff on that point. It will be observed that the witness did not pro-* fess to have any personal knowledge as to how much lumber was received from Mason & Co.; that practically his entire knowledge was derived from certain invoices and drayage checks. He does not pretend to know who made
On behalf of defendant, two witnesses, Carroll and Kern, the architects in charge of the erection of defendant’s house, testify that the lumber and material obtained from Mason & Co., and used in the house, was worth from •$2,700 to $3,000. The jury returned' a verdict for plaintiff for $1,513.70. In view of the verdict and the state of the proof, we must hold that the ruling of the court in refusing to strike out the testimony of Taft was an error that necessitates a reversal of judgment.
One other matter is presented that we think proper to notice in this opinion. The court charged the jury, on its own motion, as follows: “The court charges you that in this case the burden is upon the plaintiff to prove the .assignment, and notice thereof to the defendant, substantially as alleged in the complaint, by a preponderance of ■the evidence; and, if you find from the evidence that the plaintiff has so proved the assignment and notice, then you .must further find from the evidence, before the plaintiff is entitled to recover, that the claims which the defendant paid after such notice from plaintiff were claims ■which were not liens against the house in question, and
The court further charged the jury, at the request of plaintiff, as follows: “ The answer of the defendant admits the sum of $2,320.80 to have been due from the defendant to Taft & Kropfganz on January 10, 1891, and alleges that defendant paid out the fund in controversy to certain firms for materials furnished, and for which defendant’s house was, or could have been, charged with liens under the mechanic’s lien law, as follows: To Mason & Co., $1,844; to Irwin & Buse, $100; to Spencer, Bywater & Co., $71; and to Culmer & Bro., $305.80. The plaintiff concedes the fact and legality of the payments to Spencer, Bywater & Co. and Culmer Bros. You are instructed that if it shall be established by a preponderance of the evidence that the assignment, as claimed by the plaintiff in the complaint, was made, and notice thereof was given to defendant, the burden is cast upon the defendant to-prove by a preponderance of the evidence that payments made to Mason & Co. and to Irwin & Buse were for materials or labor furnished in the building of the defendant’s house, and for which liens could have been filed; that is to say, that the times for such filings had not expired. In ascertaining the amounts of such claims, the defendant, after notice of McCornick’s claim, was bound to be diligent and cautious; and no agreement or consent, of either Taft or Kropfganz to payments made can justify defendant, or relieve him from liability, if in fact he paid claims for which his house was not liable, unless he used proper care and diligence to ascertain the fact, and by competent evidence, and paid in good faith, or unless plaintiff consented to such payment.”
It is due to the trial judge to say that the exceptions to the charge were not taken at the trial, but, by stipulation between the parties, were taken .when the statement on motion for a new trial was made up. We do not approve this practice, but, if parties indulge in it, they must take the consequences. No doubt the charge would have been corrected if the attention of the trial judge had been called to the matter at' the time. The judgment and order denying a new trial are reversed, and the cause remanded, with directions to grant a new trial; appellant •to recover the costs of appeal.
Dissenting Opinion
(dissenting):
I cannot* agree with my brothérs in this case. The amended answer of the defendant sets up an affirmative defense, and the defendant offered evidence upon that defense. The plaintiff was therefore entitled to the instruction given, — that the burden was on. the defendant to establish the allegations of his affirmative defense. The charge, should be construed as a whole. The charge, as given, is not, in my opinion, contradictory, but properly covered the issues presented by the pleadings and proofs. Hamer v. Bank; 9 Utah, 215, 33 Pac. 941, and cases cited;
The witness states the payments made by Sadler to Taft & Kropfganz, and that a balance was left unpaid, of ■$430, to Taft & Kropfganz; and these facts and figures were presented to Sadler at or about the time of. the ¡settlement between him and Taft & Kropfganz. He further states: That he knew of his own knowledge how much lumber was bought from Mason & Co. for Sadler’s house. He knew from the bills and from the checks delivered with the lumber at Sadler’s house when he w'as in charge. That he was there nearly every day, looking after the job, .and the materials that were received. Checks were delivered to him with each load of material delivered, — that is, a ■delivery check came with each load, — and he was constantly looking after the material delivered for Sadler’s house. He was a member of the company, with Taft & Kropfganz, and ordered this material for the firm for the defendant’s house. The bill of lumber delivered he ’verified by the