*1 COMPANY, & McMURRY RISSLER
Appellant Cross-Appellee
(Plaintiff below), COMPANY, RICHFIELD
ATLANTIC
Appellee Cross-Appellant
(Defendant below), COMPANY,
CERTIFIED WELDING Cross-Appellee
Appellee below).
(A Defendant Joined
Nos.
Supreme Court of Wyoming.
Jan. *2 Pаrk, Harry Leimback and David B. E. material furnished to ARCO at its Sinclair Harry the briefs and E. signed Casper, position took a consistent refinery. ARCO agrument in oral appeared Leimback agreed and still does then appellant cross-appellee behalf under written contract for a the work McMurry Company. & $35,000.00, price of guaranteed *3 subcontractor, its the work Owens, was Murane, James W. Bostwick, unsatisfactory and incomplete to its McDaniel, Scott, Owens, Greenlee & Casper, $15,000.00, the sum of and damage in the signed the appeared briefs and in argu- oral against claimed now it and what it has total of appellee ment behalf and cross-ap- price. already paid guaranteed exceeds the pellant Atlantic Richfield Company. judgment Summary granted ARCO for Mullikin, R. Lathrop, Michael Uchner & interest, $46,088.94,' plus May Mullikin, Cheyenne, signed the briefs and there remained the counterclaim oral appeared argument on behalf of the Rissler. appellee and cross-appellee Certified Weld- Thereafter, joined defendant Rissler Cer- ing Company. as light tified defendant plaintiff GUTHRIE, J., Before C. and McCLIN- joined ARCO’s claim that defendant was RAPER, ROSE, TOCK, JJ. THOMAS contractor, not Rissler, praying that if RAPER, Justice. it be found Certified ordered work done judgment Rissler have against money judgments in plain- From favor of $40,967.94, for the firm together with inter- McMurry & Company against Rissler tiff at the rate of est 7% July 1970. Company defendant Atlantic Richfield denied Certified and still denies that it em- $35,569.30 sum and against defend- ployed or contracted with Rissler to do the sum Welding Company ant Certified paving ARCO. For the purposes of $5,398.64, verdict, based upon jury plain- prevent confusion, Rissler was re- appeals and partially tiff defendant Atlan- designated plaintiff as with ARCO and Cer- cross-appeals. Plaintiff tic Richfield Rissler tified, defendants. We continue that redes- principal is satisfied with the amounts of ignation. against judgments each of the defendants trial court al-
but claims the should have Apparently, during trial, the issues were: prejudgment lowed interest. Defendant contract, 1. Did a valid oral, written or cross-appeal Atlantic Richfield in its exist between Certified and pav- Rissler for have been entirely should ing plant roads at ARCO’s Sinclair refin- against joined Welding. defendant Certified ery? leaving it at mystery point Without . 2. Did valid either oral or lengthy opinion, in this we announce our written, exist between Certified and ARCO to affirm the district court ex- intention plant paving roads at the ARCO rеfin- cepting prejudgment to allow interest and ery Sinclair, Wyoming? judgments for correction ac- remand cordingly. shall refer hereafter to Ris- 3. aDid valid contract, oral, written Rissler, McMurry & as sler Atlantic Rich- exist between Rissler and ARCO for the Welding as field ARCO Certified plant paving of Sinclair, roads at Wyoming? Certified. 4. What was the reasonable or contract originally There by action filed price of labor and performed materials plaintiff ARCO Rissler for as- supplied by Rissler in connection with its phaltic petroleum materials and products work done on plant roads? the latter in its highway sold construction performed Was work in a work- $46,088.94. sum work Rissler re- manlike manner? payment, fused admitted the pay Its Was debt. refusal was based on the Certified limited to the sum of $35,000.00 ARCO, for all ground by way set-off, work performеd by owed either it for paving, equipment plant Certified Rissler on rental and base roads? (or) Certified and discussed with him the extent interest of Certified what
7. To it per- for work paving job. bidding liable paving. to do equipped was not At the formed? time, doing Rissler was in the area paving here are: issues The work for the State De- Highway interest add- prejudgment 1. Should about to finish partment, up its contract by judgments obtained ed to During the move on. course discus- Certified as claimed against ARCO Certified, between ARCO sions it was matter of interest was not appellant? might that Rissler mentioned be available jury. None nor considered tried paving, after preparation by base jury consideration requested parties Certified. trial court de- allowance. of interest rep- Rissler was contacted a Certified on the verdict nied *4 prepared a Rissler’s estimator resentative. timely by it was demanded though amounts subject to the limitations that the quotation Rissler. Certified, work would be done by base unsup- a verdict reach Did primed oil by compa- would be base another evidence, in favor of Rissler by the ported and ny, and ARCO would furnish deliver ARCO, cross-ap- as a ARCO? against and asphalt liquid material to mix Rissler’s an errone- reached pellant, up set plant already vicinity. Rissler it instead of Certified ous mix, lay deliver and paved surface. would by instructions inadequate because price quoted “three Rissler inches thick a real is the issue judge, which seventy square yard. five a dollar That by cross-appellant. 11,000 square yards.” (The based on was advantageous appeal, evidence On figurе was 11,000 10,000). later reduced to given every party must be prevailing then, ARCO, a proposal Certified in reasonably can that be inference favorable paving in described its bid various it, in support of a fairly drawn and sq. price per yd. “Bid ways: based on Ford, Wyo.1970, Berta jury’s verdict. 10,000 sq. yds. asphalt paving 3" thick Wyoming Digest, West’s See * * existing *. Lump Sub-Grade Firm ®=^930, Error, many for other and Appeal 10,000 sq. yds. based on main price Sum court, reviewing we cannot As a cases. 3“ roadway paving thick.” The bid of Cer- our facts substitute job, prep- was for whole including tified Lander, 1969, City Miller jury’s. sub-grade drainage, aration and ex- Wyoming Digest, West’s 889. See cept that ARCO would liquid furnish the Error, ®=>999(1). Any mention Appeal The prime for hot mix coat. “Firm will opinion be set out in this of facts $35,- Lump price” Sum referred otherwise noted. light unless that 10,000 square yards at $3.50 000.00— dispose cross-ap- first of ARCO’s We will yard. square sequence of facts A narration of peal. fully ARCO quot- aware of Rissler’s background which should up build will price ed square yard, three finally into the more im- logically lead us just thick for paving. inches It was dis- question. portant by representatives Rissler’s directly cussed made spring plans of 1970 ARCO In the representatives with ARCO’s as well as refinery. open areas of Sinclair pave representatives of ARCO, when Certified time, working Certified at At the were present. all ARCO engaged performing welding plant, from others received bids as well. job, principal type of work for piping general was anxious organized. it is Certified's to know wheth which would do work because it superintendent experience there had with er it wanted job. qualified go on to another ARCO never did preparation and was dirt work proposal paving. representatives accept ARCO made Certified of roads “purchase “guar plus order” for a but issued cost for profit, item all of which $35,000.00,” maximum of which Cer were paid by anteed invoices ARCO. Further- purchase accepted. more, never The proposal tified order Certified’s included laying counter accept prime offer not an coat but became ARCO hired someone do that. proposal, ance of Certified’s var else to evidence of an oral offer. Trautwein v. ied the terms ARCO with Rissler was sub- Wyo.1970, 472 P.2d stantial. Leavey, 779. With commitments out firm ARCO told Cer paving phase by Rissler encountered with the base. proceed
tified Certified problems. can conclude the evidence bought crushed base material from Rissler. acting upon instructions from ARCO problems spots ran into soft personnel, Rissler was directed lay down usual where the crushed rock base could up inches paving to 16 at points critical used, satisfactorily so consultation than the rather uniform three inches antici- person with and instructions from The net pated. result was that equiva- nel, asphaltic spots base in those 18,519 square yards lent of paving upon. decided three inches thick was down, laid problem developed actually A the area further when was covered was probably half plain figure. discovered that the about usual rock There crushed is no evi- dence, conflict, base could not be pipes used over Rissler did not deliv- lay 3,000 er plant roads. down By using were under tons paving mate- *5 which, if tamping equipment, danger the rial laid at of creating thick, three inches equal 18,519 the apparent. Again, leaks became would square an asphal- yards in- upon; per square $1.75 tic mix base was decided voiced yard such a mix for a sub-to- $32,408.25. solidify being spread. after tal of would In its All base invoice paving, for further material —both crushed rock there was included special special the base tons at Rissler, (393.5 $7.50) mix —was ordered from it mix rate of previ- mentioned, coming ously $2,951.25, to billed to Certified. The plus crushed base was separately material, invoiced sales tax of on by $50.90 to ARCO crushed Certified for $5,398.64. grand $35,410.40, to total of paid and came that special ARCO price quantity sum to Certified. the mix was not dispute. Certified admitted at in figure trial that it should The last is the exact have that amount of forwаrded jury’s verdict in amount on to Rissler. The favor of Rissler and ARCO, against when a that amount further is not amount of equipment rental, for dispute. special asphaltic base to $158.90 materi- which Ris- entitled, by al furnished Rissler was sler was is added. on another bill and we will come to that. argues ARCO that if the jury had
Rissler,
shortly
July
1970, began
before
given “step”
instruction,
been
or “issue”
it
heavily pressing
management
ARCO
for
have reached the
could not
result it did and
go
proceed
ahead because it
to
to
there
therefore
was error in
the jury
While the
job.
next
evidence at
point
been
must have
confused.
jury
conflicting,
light
becomes
in the
in the
instructed
law of
contracts,
written
verdict,
jury’s
we
conclude
ARCO dealt
quantum meruit,
oral contracts and
directly with Rissler and instructed Rissler
apparently
not
particular
form
figurе
proceed
quoted
to
basis of its
preferred.
connection,
ARCO
In that
we do
square yard,
three inches thick.
$1.75
not find attached to its brief the ideal form
An oral contract was thus
That
formed.
it
nor do
suggests
any
we find
reference to
directly
ARCO dealt
with Rissler is borne
any instruction it offered and was refused
fact
billing
out
instead of
by the coúrt which demonstrates the stan
price
ARCO for
contract
urges.
dard it
We
“step
understand a
in
square yard, Certified billed
ARCO
struction” to be one where
jury
is di
base,
laying the
on a pay-as-they-went basis
step by
to
step
rected
consider
prop-
various
nation on the grounds
objection may
order.
are fa-
particular
in a
ositions
miliar
murder
ed homicides
when and
step
somewhat
exactly
support
notice a claimed
State, Wyo.1976,
find
instructions1
able
wеre
eration.
sue”
“step”
should
Safeway
terial
was offered
see none
requests
the
objects
the
“*
stating
struction
* *
precedent
365;
instruction,
also
[*]
instruction,
part:
giving
jury
*6
* *
argues
In examination
instruction
cases
what
of that
*
[*]
Rule
756, 763.
Stores,
law as set
made
and the
distinctly the matter to
in what
Nichols
>>
that not
at a
unless
No
retires to consider
been an
[A]ny party
or the
made
ARCO
51, W.R.C.P., provides in ma
loss,
to the
step instruction
party
error
the
proposition.
instruct
it
cogent argument.
Inc.,
as visualized
he
grounds of his
order
there should have been
offered, no form of “is
offenses.
to the trial
offers no
court instruct
however,
“issue”
only was
failure to
Pangarova, Wyo.1968,
forth in the
objects
avail-
unsupported by has in
may assign as error
Wyo.1972, 502 P.2d
judge
form in which
to consider includ-
may file
other
instruction; we
thereto before
mind.
jury
We nеed not
415. We are
objections
authority
Evanson v.
give
its
than there
figure
judge,
his
objection.
which he
requests.
form of
the
used
verdict,
written
ARCO,
consid
Joly
While
how,
they
jury
out
we
in-
satisfy
its verdict
different
There
step
establish
oral
The burden
been convinced.
verdict
same
such
cross-appellant
the court
for a
that the
finding upon each
such
a verdict
request
interrogatories is
form
rogatories,
dict. The
the decision
the
ty of
the best
“* *
position
gested language,
does
one
or issue instruction had
instruction, rather
a form of verdict. We find no request
information,
rule,
special
of
is no
form, accompanied by written inter
in favor
giving
for a form of
used. Rule
judge and in its
ARCO seems to
prejudicial error
special
result would have been
submission
give
know whether the
based
rule,
the court
upon
way to infоrm the court
of which
is to the form language
showing
may require
any
wanted the
one;
if the
of a
one or more issues of
form of a special
on a written contract,
quantum
verdict with
instruction on the
issue
in writing if
submission of his
49, W.R.C.P., provides
should
may
party
verdict different
or
made that even if a
is necessary
nor
objection by
than to
the record nor did
sound discretion of
failure to
absence,
cross-appellant
of fact. By the
submit a
do we find
meruit.
includes
have
or
concerned that
jury
we
the proprie-
answers
requested
used,
possible.”
a general
have not
returned
to a ver
submit
reached.
counsel,
general
written
divulge
a find
If the
return
of his
issue,
than
fact,
sug-
any
a
Dreesen, 1975,
every
necessary
Haley
material
fact in
ing
said in
v.
As
jury.
to a
expla-
Murphy
a clear
submitted
while
issue
Smith
532 P.2d
signed purpose,
making
objecting
jury
practice
than
a
Apparently,
other
record for
of
Kitts, Wyo. 1975,
purposes.
jury
appeal
is contin-
Runnion v.
has retired
after
instructions
County
uing
It is
1312. We
District Court.
can visualize counsel
in Natrona
by
parties
thinking
objections
stipulation
no
being
of
while the instructions
done
during
being given
argument.
par-
They
objection
raised. Even
are
will be
good
by
very
stipulation,
frown on the
little
when
so
we
entered after
ties do
W.R.C.P.,
Here,
requiring
jury
ob-
we
find an
of
retires.
even
untime-
Rule
avoidance
given
objection
argument being
along
jections
ly
be
before the
to oral
made
to instructions
Leasing
objections
It is
with
instructions.
not an
Jackson v. Gelco
retires.
practice
process
Wyo.1971,
1052. The
of mak-
case
such a
defeats
issue
purpose
ing objections
rule
instructiоns
at
time when
of a desirable
fashioned
improvement
upon
opportunity
permit
to reflect
correction or
least
of
has an
the court
proce-
judges
objection
approve
Trial
should not
is a desirable
instructions.
well-taken
some
stipulations.
error.
It serves well-de-
can avoid
such
dure and
Sales, Inc.,
son for
Wyo.1976, 544 P.2d
the rule
Trailer
and some of its ramifica-
tions may
helpful
also be
the deciding of
question
future
cases. The
usually
us,
appears
study
after
It
as incidental issue in
1,100 pages
appeal,
of record in this
Here,
a case.
it
the principal issue,
so we
through
slashed
the underbrush
it
believe
deserves more attention.
to the core of
matter:
right
was there
Some contracts specifically provide for
plaintiff
between
Rissler and
contract
de
interest. Those cases can be
upon
decided
what
ARCO and
sort of
if
fendant
their contract
terms
regarded
as com-
any,
properly
was there
Certified? It
pensation for the use of money or for the
the existence of
pushed
aside
written
extension
credit. The contract
in such
Certified and found a com
contract with
governs
instance itself
by
interest
way plete
plaintiff
oral contract between
compensation or damages for breach. We
defendant, with
unit
of measure within
are not concerned with that
type of con-
compute
terms
could
its
concerned,
tract. We are
here,
with the
Rissler’s contract
entitlement.
amount
that is silent
with respect to inter-
meruit was
quantum
unnecessary.
Resort
While we
est.
have statutory provisiоn for
can
no confusion in the
find
verdict.
interest,
allowance
it does
pre-
not
applied
contrary, it
To the
extraordina
cisely indicate
application
to recovery as
ry
usually
sense
followed
common
litigation.
a result of
adequate
We hold that
jury.
13-477, W.S.1957, C.1965,
Section
instructed,
ly
understood the issues and act
provided as follows:
upon
basis of
ed
substantial evidence.
“Interest
the loan or forbearance of
court has spoken frequently
This
money,
goods
things
action,
shall be
prerequisites
to recovery
pre
about
cent,
per
at the rate of seven
annum,
per
interest
holds with the
ma
rate,
greater
unless
exceeding ten
that interest
jority
cent,
courts
recoverable
annum,
be contracted
liquidated
unliquidated
but not on
parties.”
and that a claim is considered
9-103,
By
Ch.
§
Session Laws of Wyo-
readily
computable by
when
simple
ming,
that section was amended to
computation. Zitterkopf
mathematical
read as follows:
Roussalis,
436;
Wyo.1976, 546 P.2d
Mader v.
“If
agreement
there
provision
James,
190;
Wyo.1976, 546 P.2d
Chandler-
rate,
law for a different
Gorrell,
Simpson,
Wyo.1970,
Inc.
money
shall
at the rate of seven
[sic]
(see Wyoming
cited);
cases there
per annum.”
percent
*7
Insurance
Company
United Pacific
Mar
same
words appear
40-9-103,
also as §
Contractors,
tin and Luther General
Incor
W.S.1957, 1975 Cum.Supp.,
part
as
of the
664;
455
porated, Wyo.1969,
Leet v.
Uniform
Wyoming
Consumer Credit Code.
Joder,
1956, Wyo.
75
33
position of Rissler that
its unit costs
question
determinative of the
whether an
the same. ARCO offered no evi-
money
remained
amount of
sued for is a ‘liquidated
”
place
figures
its own to
Rissler’s
dence of
sum.’
dispute. Rissler’s claim never varied from
subject,
Prejudg
“Award of
to verdict.
If there
initial invoice
Recovery
mеnt Interest
Builder’s
in Ac
complexity,
dispute
it
went
Contract,”
tion for Breach of Construction
liable,
who was
whether there was a
over
has received extensive
treatment
Anno
validity
counter-
guarantee,
ARCO’s
tation,
Not
un when a claim under a construction contract
but it used a
liquidated,
involved
contract unit stan
is
or where
thereof,
the amount
agreed
between ARCO and
dard
Ris- although unliquidated,
capable
is
of as
square yard,
sler:
three inches
calculation
computation,
certainment
is
Where there
a standard fixed
thick.
recognized
it is also held or
that a contrac
contract,
from which the
amount
right to
tor’s
recover interest on his claim is
may
computed,
liqui
earned
there is a
by the act of
not barred
the party against
figure, which should bear interest
dated
it
asserted
putting
whom
forward an
date due. Paduano v. J. Boesp
from the
C.
unliquidated counterclaim or set-off. The
1965,
Company,
flug
66
Construction
counterclaim or set-off does not convert a
527,
841, 845,
citing
P.2d
Wash.2d
Mall
demand into one
liquidated
is unliqui-
Equipment Co., 1954,
Co. v. Far West
Tool
&
dated. Herbert
Brooner Construction Co.
158,
Elte,
45 Wash.2d
35 annum, percent per nеgotiations con- rate of seven arrangements and between ARCO, opinion, with this to the date of the Rissler, sistent Certified and this court is appealed from and enter modi- judgment entitled weigh that evidence and con- judgment accordingly. fied clude that “ARCO dealt directly with Ris- sler and instructed proceed Rissler to on the McCLINTOCK, Justice, dissenting in figure quoted basis $1.75 THOMAS, joins. with whom Justice part, square yard, three inches thick. An oral thus formed.” Using majority I with the this con- sustaining concur agreed upon tract standard by Rissler and judgment fixing court district ARCO of per square yard, three sum due from and Certified to thick, inches it then becomes a matter of but must dissent Rissler1 rudimentary arithmetic to compute opinion requiring the inclusion inter- amount due. This results in a well majority present structured est. figure “which should bear interest
argument, which from the long the basis оf is the date due.” well established of this court that rule which are calculable readily sim- My own examination of the evidence computation2 mathematical from the ple leaves me in doubt that an actual oral con- upon of the contract3 are claims which face tract existed between ARCO and Rissler for be prejudgment included in performance of the paving upon work They as matter of law.4 agreed compensation and were it materi- parameters computation on the find al the position I which take I might well an oral contract which they find was face disagree. However, throughout the plead- into between Rissler and ARCO. entered ing, pretrial stages and trial of the proceed- process interpretation done This upоn ings appeal to this court Rissler the jury’s verdict, the evidence and present has continued to alternative claims: to me. unacceptable (1) that either express there was an con- opinion, As I read the al- furnishing holds that tract for the of service and ma- conflicting the evidence was terials at agreed as price permitting appli- majority previous decisions, Joder, as in Parties are referred to 225, 1. Wyo. v. Leet 75 opinion. 244, 733, (1956), 295 P.2d 740 In re John- Guardianship, Wyo. 173, son’s Estate and 78 Roussalis, Zitterkopf v. 546 P.2d 2. 439 429, 433, 72 (1957), 320 P.2d A.L.R.2d745 James, (Wyo. 1976); (Wyo.1976), Mader 195 has this court ventured discussion of the principle appears reh. denied. damages subject of interest as and both are first to have been enunciated the denial for My point. perusal inconclusive on the own McKay, rehearing Wyo. in Kuhn v. the tеxts and majority opinion, cited in (1897), authorities note 3 of applied P. has been majority particularly Prejudgment opin numerous cases as cited In- Damages: Application ion. terest as New of an Old Theory, (1962-63) L.Rev. 107 Stanford has Gorrell, Chandler-Simpson, Inc. reap- convinced me that needs to (Wyo. 1970) only appears to be the praise carefully unreasonably what me the referring decision face of the inequitable rule of narrow and sions, our earlier deci- Kuhn, supra contract. computation n. found the basis for seriously consider whether this court price; market an established kept step developing jurispru- recognized that this others have basis but found that there was market was a valid dence of our sister states allowance of established legislaturе’s interest. Our amendment of the price, g., e. Johnson Hanover Fire statute, majority opinion, 120, 137, Wyo. as shown in the rais- Insurance P.2d (1943). interesting questions. appear I 619-620 es If in this my convictions, talking against note it is Only accept purposes dissent do I of this questions for the reason that those should be agreement complete this majority I rule. am in with the only they are considered in briefs matter of that the whole arguments of For this counsel. reason I interest deserves extensive consideration this court and am my limit dissent to the narrow issue of allow- sympathetic with their indi- ance as matter of law of interest leaning allowance cated toward the of interest readily computable claim. damages. I note that in two of our *11 36 specific quantum it. A instruction on to work prices contract the of the
cation
only by
objected
the
to
ARCO and
done;
it did the work with
(2)
or
that
meruit
in
that
the
acquiescence of ARCO
this court
knowledge
party
and
contends
no
full
to
represent
was entitled
recover
as such did not
cor-
reason
for that
instruction
and
of the service and ma-
the
value
law. While continu-
rect statement
the reasonable
furnished,
by indepen-
jury
properly
as established
the
to claim that
could
ing
terials
evidence,
usually
is
recovery
which
an oral contract and
its
found
based
dent
thereon,
pleadings
arguments
to
the
and
in way
in
aban-
referred
only
If it is
rea-
previous
recovery
meruit.
the
claims to
its
quantum
doned
of the service and materials
work.
majori-
value
value
sonable
reasonable
recoverable,
jury
if the
even
the
found
is
that
that
ty’s
cоnclusion
value to be
fixing
price
such reasonable
the
finds
was an oral
there
deep,
work,
it nevertheless follows
yard, 3"
than
square
rather
liqui-
thereof,
the claim was not
amount of
reasonable value
is
that the
to the
entitled
the
and could not be so
unjustified.
to
suit
prior
my opinion
dated
trier
the
the
fact
until
reported
Supreme
In
first
case
the
the
reasonable value.
such
determined
Wyoming Territory,
Western Un-
Court
recog
qualification
clearly
think this
I
Monseau,
Company v.
1
Telegraph
Wyo.
ion
majority,
cited
by authorities
nized
was said:
(1870) it
19
“
Washington
*
those from
* *
particularly
proper
there is evidence
to
[I]f
Company
Mall Tool
v. Far
Circuit.
Ninth
a jury
to
on the issue before
be submitted
Company, 45 Wash.2d
Equipment
West
it;
them,
province weigh
it is their
C.
(1954);
654
Paduano v. J.
P.2d
273
very
case, appealing
be a
clear
it must
66
Boespflug Construction
strongly
conscience of the
very
(1965), and
Wash.2d
permit
us
court,
to interfere
to induce
Mullen, Inc.,
Elte,
469 F.2d
Inc. v. S. S.
It is not sufficient
with their decision.
denied,
1972),
1127, 1133 (9
apply
reh.
Cir.
jury might probably
another
arrive
liquidated claim as stated in
of a
definition
conclusion,
nor
at a different
Damages
one
p.
213 as
§
McCormick
entirely
satisfied with the
court should
which,
evidence furnishes data
“the
where
verdict;
if
proper
there
evidence
for
believed,
possible
compute
makes it
if
tending
prove
to consider and
them
exactness,
without
reliance
amount
we must be
presented,
satisfied with
issue
opinion
(Emphasis
or discretion.”
upon
unless it is
judgment,
made to ap-
their
clearly
added)
qualification
applied
judgment has
pear that their
been unfair-
Ulvestad,
Hopkins v.
Wаsh.2d
ly exercised.”
(1955):
P.2d
“ * * *
weigh
This reluctance to
evidence has
involving
This
not a case
throughout
history
continued
court’s
labor
pay
and material
promise
Sekulich,
“It also be here observed that
reading transcript of the evidence clearly case shows that the verdict herein could as well have been upon lack negligence
based a total McMULLEN,Appellant Marie Bell respondent part contribu- (Defendant below), tory negligence upon of the ap- pellant through a violation of the ordi- question.
nance in In such a situation McMULLEN, John T. Appellee appellate courts will not look behind the (Plaintiff below). attempt to ascertain the No. 4757. adopted by the theory jury.” Supreme Court of Wyoming. In Lo Galbo Columbia Casualty Com- pany, App.Div. 255 N.Y.S. Jan. (1932)judgment had been obtained person insured the defendant insur- company, and it was ance not clear from judgment whether recovery