157 P. 582 | Wyo. | 1916
Lead Opinion
The Studebaker Corporation of America brought this action in the district court against Alpheus P. Hanson to recover an amount alleged to be due for goods, wares and merchandise furnished and labor performed during the months of July and August, 1911, at the request of the defendant, and on his promise to pay therefor. It appears from the evidence that plaintiff’s claim was for supplies furnished and labor performed for the purpose of correcting a defect in the construction of an automobile. The petition alleged that the work was done and the goods furnished by the Studebaker Colorado Vehicle Company, a corporation duly organized and existing under the laws of the state of 'Colorado and carrying on business in the city of Denver in that state, and that on or'about the first day of January, 1913, the plaintiff purchased all of its accounts including the account sued on, and that the same had been duly assigned to the plaintiff.
The answer denies generally the allegations of the petition, and alleges in substance that in 1910 a corporation known as “The Studebaker Corporation” was doing business at Denver, Colorado, through a branch house and sales agency known as the “Studebaker Colorado Vehicle Company” ; that it was re-organized some time prior to January 1, 1913, under the name of “The Studebaker Corporation of America,” and that the plaintiff as so re-organized is the same company as the Studebaker Corporation that had been doing business in 1910 through the said Studebaker Colorado Vehicle Company at Denver; that during said year of 1910, the defendant bought of the Studebaker Colorado Vehicle Company, “a branch house and a representative agent of the, Studebaker Corporation,” an E-M-E automobile, under a guaranty that the same was a good and perfect car, and that if it was not perfectly satisfactory to the defendant the plaintiff would make it so, and that defendant
For further answer and by way of cross demand the same facts are substantially again alleged; that the car so bought of the plaintiff instead of being worth $1,350 is and was of no value whatsoever; and that by reason of the failure of the plaintiff to fix the car so that it would work or give the defendant a new car as it agreed to do, the defendant has been damaged in the sum of $1,350, and judgment is demanded therefor. The reply denies generally the allegations of the answer and cross demand, and also specifically that
The cause was tried to a jury, without any evidence being offered by the plaintiff in support of its claims alleged in the petition, and a verdict was returned in favor of the defendant for $550. Judgment was entered upon the verdict, after the overruling of plaintiff’s motion for a new trial, and the plaintiff brings error. It is stated in the brief for each of the parties that prior to the trial the plaintiff dismissed its cause of action, and the case will be considered on that theory, though there is nothing in the record showing such dismissal, except a mere reference to the fact thereof at one place in the transcript of the testimony and plaintiff’s failure to produce any evidence in support of the petition. Whether or not there was a formal dismissal, it is at least evident that the plaintiff abandoned its alleged cause of action, and the case appears to have proceeded to trial on the defendant’s counterclaim under the provision of the statute (Comp. Stat. 1910, Sec. 4611) that where a counterclaim is pleaded the defendant may proceed to the trial of his claim, although the plaintiff has dismissed his action or fails to appear.
The first question to be considered is whether defendant’s alleged cause of action is pleadable as a counterclaim in this action, counsel for the plaintiff contending that it is not. It is argued in support of that contention that the counterclaim could not have arisen out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, since the defendant’s cause of action, if established, accrued before the indebtedness sued on by the plaintiff was incurred; and that it is not connected with the subject of the action, for that was to recover an alleged amount due upon an account for supplies and labor in repairing an automobile, and although the car sold to defendant was the one repaired it does not appear that such repairs were required by the alleged warranty or made necessary by the breach there
The statute provides that a counterclaim which may be set forth by a defendant in his answer must be one existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action. (Comp. Stat. 1910, Sec. 4391.) Conceding that this counterclaim did not arise! out of the contract or transaction alleged as the foundation of plaintiff’s claim, we think it is to be regarded as connected with the subject of the action, and for that reason properly pleadable in the action as a counterclaim, if shown to be a claim existing against the plaintiff.
It is not necessary to hold to sustain the counterclaim that the subject of the action brought by the plaintiff was specifically the car sold to the defendant, or the transaction of the sale and purchase of the car, though under the averments, of the answer and the evidence it would not be difficult to find a close relation between the sale and the work done upon the
“Thus, the right of property and possession in ejectment and replevin, the right of possession in trover or trespass,*232 the right to the money in all cases of debt, and the like, would be the ‘subject’ of the respective actions. Although in a certain sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the ‘subject,’ and are sometimes spoken of as such, yet this cannot be true in all cases; for in many actions there is no such specific 'thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the controversy around which all the other elements are grouped, and to which they are subordinate. * * * * * It seems, therefore, more in accordance with the nature of actions and more in harmony with the language of the statute to regard the ‘subject of the action,’ as denoting the plaintiff’s principal primary right to enforce or maintain which the action is brought, than to regard if as denoting the specific thing in regard to which the legal controversy is carried on.”
Several assignments of error are based upon the admission of evidence as to statements of alleged agents of the plaintiff. From the evidence it appears that the car was purchased sometime in July, 1910, being then delivered to the defendant at Denver by the Studebaker Colorado Vehicle Company to whom the purchase price, $1,350, was paid. Mr. Dildine, an automobile sales agent or dealer through whom in the first instance the car was bought, accompanied the defendant to Denver for the purpose of receiving the car and bringing it to Cheyenne, where the defendant resided. The defendant testified that at the time of the purchase he was given a guarantee printed in a book which was introduced in evidence, showing in large print on the outside front cover the following: '“Price List of Parts E-M-F 30 (the word ‘Thirty’ running through the figures 30) Manufactured by Studebaker Corporation E-M-F Factories Detroit-Michigan.” In the body-of the book and in the “Introduction,” under the head of “Replacements,” the following appears. “Our guarantee means just what it says. You will find a facsimile following this introduction. Read it. The Stude
The defendant testified as to his experience with the car after receiving it as follows :
“Mr. Dildine, Mr. Stone and his wife and my wife and myself went to Denver to get this car, and we went to this Studebaker place and selected this car and had the matter fixed up, and the next morning early we started for Cheyenne. We drove out in the car with Mr. Dildine driving and Mr. Stone and myself in the car. We turned and went down, I think it is 15th street, and when we got about half way down the block going north, he started to put it into the intermediate gear’ and he couldn’t mesh it — it wouldn’t work. He said ‘There is something wrong with it,’ and then he kept working on it and said ‘I will have to go back to the garage.’ * * * * He turned and went back into the*234 garage and said something was wrong with the transmission, it wont work. He said that to the people in the garage there. I think Mr. Potter was at the head of this institution at that time. They commenced working on it and they saw it wouldn’t work. Pie commenced with a hammer, and I said ‘If you have got to start that way with that car, I dont want it and I wont take it,’ and I went to the hotel. After I had been there a while Mr. Dildine come up and wanted to know if I would be satisfied if they took off the box, or whatever you call it — the body — and put it on the running gear of a car that was in the sample room, if that would be satisfactory to me. I said it would, if the car was right, was a good car and worked all right, I had no objection. They worked on it all night and about ten o’clock the next morning we started for Cheyenne, and Mr. Dildine drove the car. Pie kept complaining of the car. He said it wouldn’t pull and didn’t act right, and we never got any further than Fort Collins that night. We stayed there all night. ***** We left there just at day light and we got here in Cheyenne along way in the afternoon with the car. I complained of it, and he brought it up to my barn and I started to drive it. I went back and told him something was wrong with that car and he could take it back, that I wouldn’t accept it, and he said ‘General, give us a chance. That isn’t 'working right.’ ”
After stating, over objection, that Mr. Dildine was the agent here at that timé, and that he had purchased the car through him, he testified further: “He (referring to Mr. Dildine) said: ‘This is a big company and they will make that car right. Give us a chance. I am just getting in here selling these cars and they will make this car good.’ I said T wouldn’t have a car in the condition it is in. It will not pull on high,’ and the matter went along and he told me one'day — he told me an agent of the Company was here and that he was an expert and that he would look the car over and see what was the matter with it.” Continuing, he testified in substance that the man referred to, a Mr. Lake of the Studebaker Company, took the car with another person and
In his testimony defendant fixed the time of Mr. Lake’s visit to Cheyenne as September or October. The exact time when he went to Denver and met Mr. Wilson was not stated, except it was after Lake had tested the car in Cheyenne; but it must have been sometime prior to January, 1911, when one Rosborough was sent to Cheyenne to examine the car. On the occasion of defendant’s conversation with Mr. Wilson he had gone to Denver in the car, and after his talk with Mr. Wilson he testified they sent a man from the garage there to go out in the car with the defendant and test it; that it failed to work satisfactorily and was brought back to the garage and left there, the defendant returning to- Cheyenne ; that afterwards he went to Denver with Mr. Dildine and they came back to Cheyenne- with the car, the defendant driving it, but it continued to work 'badly, and its condi
The admission of defendant’s testimony relating to Lake’s and Rosborough’s statements was objected to and is here complained of on the ground that it was attempted thereby to prove the agency of said parties by their own declarations, and that there was no other proof of their agency sufficient to justify the admission- of such statements. It appears from the record that the rule was well understood and in
There is some conflict in the evidence concerning the relation between the Studebaker Colorado Vehicle Company and the plaintiff, presenting the question of fact whether that company was a mere dealer in automobiles and acted only as such in selling the car to the defendant, or was a sales agent of the plaintiff and made the sale in that capacity. The jury must have found that said company sold the car as plaintiff’s agent or representative, or at least with authority to sell the car with plaintiff’s warranty and furnish the necessary parts or labor to put the car in proper condition; and we think the evidence sufficient to sustain such a finding.
Authenticated copies of certain certificates of incorporation were offered by the plaintiff and admitted in evidence for the evident purpose of showing that the plaintiff company was not in existence at the time of the sale; one of the certificates showing the incorporation of “The Studebaker Corporation,” under the laws of New Jersey, on February 14, 1911, and another the incorporation, under the laws of the same state, on August 14, 1911, of “The Studebaker Corporation of America.” And the secretary of the Denver company testified that said company was not an agent of either of said Studebaker corporations, but handled Studebaker cars. On cross-examination he admitted that his
Respecting the corporate name and identity of the plaintiff and the period of its existence, it appears that the defendant claimed on the trial that the incorporation of “The Studebaker Corporation” and “The Studebaker Corporation of America” respectively, under the certificates afore
“(1.) To purchase, acquire, receive and take over (1) the assets and property of every character whether tangible or intanglible and including good-will * * * * *
of (a) Studebaker Brothers Manufacturing Company, a corporation. organized and existing under the laws of the State of Indiana, and engaged in the manufacture and sale of automobiles, carriages, wagons and other vehicles at South Bend, Indiana, and elsewhere; and (b) Everitt-Metzger-Flanders Company, a corporation organized and existing under the laws of the State of Michigan and engaged in the manufacture and sale of automobiles and other kindred articles in the City of Detroit, Michigan, and elsewhere — subject to the debts, liabilities and obligations of said corporations, as shown on their respective books of account; * * * * * (2.) To empower any of the present directors of either said Studebaker Brothers Manufacturing ’Company or said Everitt-Metzger-Flanders Company, to be and 'become incorporators, directors and stockholders in this Company and as such incorporators, directors and stockholders to vote for and authorize the acquisition of the property and shares of stock of said Studebaker Company and said Flanders Company and to relieve the incorporators and directors of this Company from any disqualification which might otherwise exist, from so acting.”
Aside from the inferences in favor of defendant’s contention that these facts might warrant, other evidence on the subject was introduced by the defendant, consisting of letters passing between the plaintiff and defendant. Those written by the plaintiff might, we think, be reasonably understood as tacitly admitting that it was practically the same company that had manufactured defendant’s car, or had as
On November 13, 1912, the defendant wrote the Studebaker Corporation, addressing it at South Bend, Indiana, setting out the facts of his purchase of the car, its defective condition, his continual complaints about it, the-sending of men here from Denver to test it, his calling Mr. Wilson’s attention to the matter, and what the latter had said about it, and other things that had occurred in connection with the matter up to that time, and concluding the letter as follows : “I believe I am entitled to better treatment at the hands of your agents, and that you should send a representative here to thoroughly investigate this matter, and I further believe that you will agree with me that I have not had a square deal. * * * * * There are a great many other details I have not gone into that I would be very much pleased to' present to your representative on reaching here. Please advise me if these suggestions meet
The first answer to that letter was from the Studebaker Corporation E-M-F Factories, Detroit, Michigan, dated November 21, 1913, and stated that defendant’s letter had been referred to “our Denver Branch, for their report on this transaction.” Further answering the letter the Studebaker Corporation, that name being printed upon the letter head, and under which appears (also printed) “E-M-F Factories Detroit, Michigan,” on January 8,. 1913, wrote the defendant commencing as follows: “With further reference to correspondence passing 'between us relative to' a-charge on the books of our Denver Branch, beg to advise that we have taken this matter up with our Denver Branch, as well as with Mr. Wilson, who is now acting as Special Representative in our Eastern Territory.” And it was further stated, among other things, as follows: “Mr. Wilson advised us that quite a good deal of work was put on the car before the motor was changed and when they finally decided to change the motor, he selected one that was an exceedingly good puller, but that when this motor was installed in your car the same effect was obtained, when it was finally' decided to change the tires, putting on our standard size tires, after which the car worked perfectly and had an abundance of power. * * * * While the report that we have received in this case would seem that your difficulties have been caused by. conditions over which we had no control and for which we could not be held responsible, and the invoices with possible slight corrections should be paid by you, we are recommending to the Denver branch that some allowances be made on this account and trust when you receive these allowances, you will see your way clear to pay the balance due.” Following that letter the defendant received a letter from the “The Studebaker Corporation of America” purporting to have been written at
It is argued that the Colorado company could not have sold the car as agent, since it bought and paid for the same as shown by the testimony of the secretary of that company, in connection with the draft and invoice aforesaid. But that fact would not alone disprove the agency with respect to the matters involved in the case, in view of the other evidence. It is said that an “agency,” within the meaning of the automobile trade, consists in giving to the agent the right to purchase from the manufacturer machines at a discount from the list price, and to retail them to customers within specified territory at the full list price. “In other words, no commission, as such, is paid to an agent on the sale of an automobile, 'but he has the exclusive right to certain territory and purchases on his own account at a
The plaintiff did not introduce or offer in evidence the contract, if any, under which the Denver company - was engaged in selling the E-M-F or Studebaker'cars, nor offer to show what the arrangement was between said company and the manufacturer. It seems to us that there must have been some arrangement or contract, and that it was within the power of the plaintiff, especially as the secretary of the Denver company was a witness in its behalf, to show what such arrangement or contract was, if it was different from that which might be inferred from its correspondence with the defendant and the other evidence in the case.
The plaintiff’s first letter, dated September 1, 1912, de
The defendant testified that after this suit was brought he met a Mr. Hicks in Cheyenne, who stated to him that he was “here to settle this Studebaker business,” that he was the general agent in this western country, and, in substance, that the several Studebaker companies, though un
It is further contended 'by counsel for plaintiff in error that there was no evidence of the value of süch a car as the defendant bought in the condition as warranted, and that, therefore, the evidence was insufficient to sustain a verdict for more than nominal damages! But we think
Error is assigned also upon one instruction with reference to the measure of damages, which it is claimed is inconsistent with another on the same subject. The jury were told in one instruction (No. 4) that the measure of damages would be the difference in price paid for the automobile by the defendant and its real value, considering such defects as they should find from the evidence actually existed at the time of the purchase; ‘and in a later instruction (No. 8) that the measure of damages would be the difference 'between the value of the automobile which defendant received and its value if it had been as represented by the written warranty. It is conceded that the latter instruction correctly stated the law as to the measure of damages. While there might be an apparent conflict between the two instructions, considered generally, they are not in fact in
Other errors are assigned with reference to instructions requested, which we think unnecessary to consider, in view of the preceding discussion. We are of the opinion that the verdict is sustained by the evidence, and as we find no prejudicial error in the record the judgment will be affirmed. Affirmed.
Rehearing
ON PETITION EOR REHEARING.
A petition for rehearing has been filed in this case by counsel for plaintiff in error. In disposing of it we deem it unnecessary to again enter upon a discussion of the question of the agency of the concern from whom the car was purchased by the defendant. We held that the evidence was sufficient to establish the fact of such agency, to the extent at least that it was authorized to sell the car with plaintiff’s warranty and supply the necessary parts and labor to put the defective car in proper condition. But it is stated in the brief in support of the petition for rehearing that the only evidence on that question was the testimony of the witness Roberts and -the defendant concerning the actions and statements of Mr. I-Iicks, particularly his statement that the several Studebaker companies were one and the same. That was not the only evidence on the question. The several letters written by the plaintiff to the defendant, referred to and quoted from in the former opinion, were not only competent and pertinent upon the question, but tended strongly as admissions to show the identity of plaintiff corporation as the one for whom the car had been sold and warranted, and also the agency of the concern who sold it.
Counsel also find ground for complaining of the decision in that, as stated in the brief, the plaintiff was held by this court to the same consequences as by the jury, because of its silence as to facts attempted to be proven by incompetent evidence. But we held that the evidence referred to was not incompetent, and we are constrained to adhere to that view, for we remain convinced that the trial court properly applied the rules of evidence relating to the admission of the declarations of alleged agents. We suppose that counsel refers to the remark in the former opinion, after reciting the evidence as to the agency of Hicks' and others, that no evidence was introduced by the plaintiff to disprove the fact of such agency, as well as a similar remark concerning the failure of the plaintiff to produce or offer in évidence the contract, if any, under which the Denver company was engaged in selling cars of the kind sold to defendant, or to offer to show what the arrangement was between the said selling company and the manufacturer, in which connection we said:
*250 “It seems to us that there must have been some arrangement or contract, and that it was within the power of the plaintiff, especially as the secretary of the Denver company was a witness in its behalf, to show what such arrangement was, if it was different from that which might be inferred from its correspondence with the defendant and the other evidence in the case.”
Now that was not going out of the record or supplying something through the imagination to cure a failure of proof, as counsel seem to suggest. We had in mind a familiar rule of evidence, which is stated in Jones’ Commentaries on Evidence as rewritten by Horwitz (The Blue Book), as follows:
“It is a well-settled rule of evidence that when the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead or rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion.” (Vol. 1, Sec. 19.)
In Jones on Evidence, 2nd Ed., Sec. 19, the presumption from failure to produce evidence is thus explained: “The mere withholding or failing to produce evidence, which under the circumstances would be expected- to be produced and which is available, gives .rise to a presumption against the party. It is a presumption less violent than that which attends the fabrication of testimony or the suppression of documents in which other parties have a legal interest; but the courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable,” and the author quotes the following remark of Lord Mansfield in Blatch v. Archer, Corp. 66:- “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.”
We said in the former opinion, referring to the objection to the admission of copies instead of the originals of certain letters, that they were admitted as explanatory of plaintiff’s subsequent letters. Counsel do not so understand the record. What the trial court said when first ruling that such copies be admitted is this: “As part of this correspondence has gone in, I believe I will permit this in evidence.” Upon that statement our remark was based that the copies were admitted as explanatory of the subsequent letters, the originals of which had been admitted, and that seemed to the writer to express what was intended by-the language quoted. It may 'be that it does not correctly represent the thought in the mind of the trial court, but we think it immaterial, if it does not. The only effect of the letters, as stated in the original opinion, was to explain the later correspondence. Counsel also seem to challenge the correctness of the statement in that opinion to the effect that such copies were admitted following a ruling at first sustaining an objection thereto, after the defendant had further testified showing the details of mailing the letters he had written and the re-, turn of the one he had received, and identifying the copies.
In commenting upon the evidence relating to the damages, counsel overlook the testimony of the defendant that the car he received was practically of no value, as well as other evidence explaining the condition of the car. There ought to be no difficulty in understanding the ground or the reasoning upon which we held the two instructions as to the measure of damages not inconsistent when applied to the evidence in the case, and that the case should not be .reversed for a technical misstatement of the law in one of said instructions. We think it unnecessary to add to what was said in the original opinion concerning those instructions.
One of plaintiff’s contentions on the trial appears to have been that several causes of action were stated in defendant’s
We perceive no good reason for granting a rehearing, and therefore, the application will be denied.