156 P. 943 | Utah | 1916
The plaintiff brought this action to recover an alleged balance due on a contract. It and the defendant entered into a written contract by the terms of which the plaintiff, for the sum of $37,055, agreed to construct and install for the defendant, on or before the 28th of August, 1912, certain store fixtures; and upon its failure to do so within that time, to pay the defendant $100 a day as liquidated damages for each day thereafter until the completion of the work. It alleged full performance of the contract on its part, and that it, at the defendant’s directions, had also made alterations of the reasonable value of $1,118.75; that the defendant had paid it in all the sum of $25,000, leaving a balance due on the contract of $13,173.
In a second count it alleged that in and about the work,, other material was furnished and labor performed of the value of $244.55, of which a balance of $45.40 remained unpaid.
The defendant admitting the contract denied performance-on plaintiff’s part, in effect pleaded payment and denied that anything was due the plaintiff, and by way of counterclaim pleaded that the plaintiff had failed and neglected to complete the work prior to January 1, 1913, by reason of which there was due the defendant, under the contract as liquidated damages, the sum of one hundred dollars a day for each day of such delay, or a total of $12,500, which together with the $25,-000 payments, left the plaintiff indebted to the defendant in the sum of $455, for which it prayed judgment.
The cause was tried to the court, who found that the plaintiff, through its fault and delay, had not completed the work until 94 days after the time specified in the contract, which resulted to the defendant’s damage in the sum of $50,000, but only awarded it the stipulated damages of one hundred dollars a day, or $9,400; and after deducting that amount and the $25,000 payments from the contract price of $37,055, found that there was still due the plaintiff on the contract the sum of $2,655. ' The court also found that there was due the plaintiff $704.35 for alterations, and $45.40 on its second cause of action. The conclusions of law are stated thus;
‘ ‘ That the plaintiff is entitled to judgment against the de*15 fendant upon tbe first cause of action for the sum of $2,655, being the balance of said contract price after deducting the sum of $9,400 damages sustained by said defendant by reason of the failure on the part of the plaintiff in completely installing said fixtures,” for the period of ninety-four days, and that ‘ ‘ said sum of $9,400 being allowed as a set-off against the unpaid' balance of said contract price, together with interest on said sum of $2,655 from December 2, 1912, and said plaintiff is entitled to judgment for the further sum of $704.25 and interest from December 15, 1912 ’ ’ for alterations, and for $45.40, with interest, from May 1, 1913, on the second cause of action.
The judgment rendered and entered March 1, 1915, omitting formal recitals, reads:
“And the court having heretofore made and filed its findings of fact, conclusions of law and decision in writing, and being fully advised in the premises, it is now ordered, considered, adjudged and decreed that the plaintiff do have and recover judgment against the defendant in the sum of $3,-404.65, together with interest on the sum of $2,655.00 from December 2, 1912, or $414.95; on the sum of $704.25 from December 15, 1912, or $123.86; and on the sum of $45.40 from the 1st day of May, 1913, or $6.60, all totaling $4,010.06, together with its cost of suit taxed at the sum of - dollars. ’ ’
In July, 1915, the plaintiff took an appeal by serving and filing written notice of appeal, which reads thus:
“Take notice that the plaintiff above named hereby appeals to the Supreme Court of the State of Utah from that specific part of the final judgment made and entered herein on the 1st day of March, 1915, wherein the court,.upon the defendant’s counterclaim, entered judgment in favor of the defendant and against the plaintiff for the sum of $9,400.00 and deducted the same from and set the same off from the balance of the amount found due to the plaintiff upon its complaint, and from each and every part thereof.”
On October 15, 1915, the defendant served and filed a written notice to dismiss the appeal on the grounds: (1) That an appeal lies only from a final judgment, and that the
The second proposition is supported by affidavit, vouchers, and a certified copy of transcript of the judgment. The affidavit recites that on the 3d of September, 1915, the full amount of the judgment, including costs and interest amounting to $4,216.63, was paid by the defendant to the plaintiff. The voucher signed by the plaintiff recites that the $4,216.63 was paid and received:
• "In full payment, satisfaction and discharge of judgment rendered in case of Sierra Nevada Mill Company v. Keith O’Brien Company, entered March 1, 1915.”
The transcript of the judgment recites :
‘ ‘ September 3, 1915. The judgment herein is fully satisfied and discharged,” signed by plaintiff’s counsel as "Attorney for Judgment Creditor. ’ ’
These matters are not disputed. But in opposition .to the motion to dismiss the appeal the plaintiff, by affidavit, has shown excerpts from a written brief and argument of defendant’s counsel in the court below. In such respect it is averred that defendant’s counsel in such brief and argument stated:
"There is no dispute in the evidence that the balance due on the contract, and which the defendant withheld by virtue of the terms of the contract and on account of the liquidated damage clause of $100 per day contained therein, amounted to the sum of $12,055. * * * There is no dispute in the evidence that there has been ninety-four days delay in the completion of this contract which was caused solely by the plaintiff. The defendant, therefore, would be entitled to set off the claim made by the plaintiff to the extent of such delay which would amount, according to. the terms of the contract, to the sum of $9,400. * *• * Defendant was losing a great deal more than one hundred dollars per day by not occupy*17 ing the store, and when it moved in on December 2d, although it was inconvenienced, as the evidence shows, to a very great extent by the plaintiff having to complete its contract, and which contract was not completed until many weeks thereafter,” yet, because of the defendant’s moving into the building, and because its manager had written the plaintiff that the defendant had been damaged in the sum of $9,400 as provided by the terms of the agreement, “we do not think it [defendant] can claim the liquidated damages after that time. * * * According to the terms of the contract therefore, there would be a balance still due the plaintiff amounting to the sum of $2,655. * * * We submit that the plaintiff is only entitled to a judgment in this case for the balance due on the contract after deducting the sum of $9,400, which amounts to the sum of $2,655. ’ ’
Now, as to the other exception. That there was no controversy as to the issue presented by the complaint, and that plaintiff’s evidence in support thereof was not controverted by evidence, and hence, that plaintiff’s claim was reduced by offsetting the allowance awarded on the counterclaim, is sought to be shown by the affidavit heretofore referred to, setting forth the excerpts of counsel’s brief submitted to the trial court. That plaintiff’s claim was found substantially as alleged by it, except that the court found that the alterations were of the value of only $704, and not $1,118, as alleged, and that plaintiff’s claim was reduced by offsetting $9,400 awarded on the counterclaim, is clearly enough shown by the record, the pleadings, the findings, and the conclusions. That there was no controversy over plaintiff’s claim is, however, not shown by the record, or by anything of record.1 To the contrary, the record shows that the whole of plaintiff’s claim was put in issue. That is shown by the pleadings. So far as the record itself speaks, there was such a controversy. The evidence respecting it is not before us. The complete transcript has not yet been sent up, but is held awaiting the determination of this motion. We thus, upon the record, are not advised whether plaintiff’s claim was, or was not, conti’overted by evidence, or whether the evidence respecting it was, or was not, in conflict. As to that the affidavit is pointed to, that defendant’s counsel, in their brief and in argument in the court below, stated that:
“There is no dispute in the evidence that the balance due*20 on the contract, and which the defendant withheld * * * amounted to the sum of $12,055, and that there is no dispute in the evidence” that the defendant, because of plaintiff’s delay, was, according to the terms of the contract, entitled to offset the sum of $9,400 from “the claim made by plaintiff.”
Passing the question of whether issues, controversies, and proceedings with respect to them may thus be shown by affidavit without doing violence to the familiar rule that what ought to be of record must be proved by the rec'ord, and by the right record, yet, - there is not anything, either of -record or dehors the record, which shows that the court in determining the issues, did so upon any admission and not upon the evidence adduced, or that the plaintiff, at all events, was entitled to recover the amount of money accepted by it, or precludes or estops the defendant, on further litigation, from disputing or controverting plaintiff’s claim. Its claim, and the amount thereof, is based on the contract. So is the defendant’s. The contract is the foundation of both. The alleged rights, the breaches, and the delicts of both parties are based upon and grow out of, and must be measured by, the contract. The defendant’s claim is not one separate and distinct from, but is related to, and connected with, plaintiff’s. The amount of recovery on the one is dependent on the amount of recovery on the other. They are thus inter-dependent, one upon the other.
Thus it is not made to appear that the plaintiff was so absolutely and unquestionably entitled to the benefits and advantages awarded by the judgment that its right to accept and keep them cannot possibly be affected by the appeal, or that it, in all events, is entitled to the amount awarded by
The appeal, therefore, must be dismissed, with costs. Such is the order.