131 P. 1173 | Utah | 1912
The plaintiff brought this action to recover a balance of $285, alleged to be due for goods and supplies, consisting of iron castings, sold and delivered to the defendant. The defendant, in its answer, admitted the alleged claims and' the amount due. By way of counterclaim it alleged in the first count that, in purchasing goods and supplies by the defendant from the plaintiff, one Wright, the agent of the defendant and acting for it in the making of such purchases, had entered into a conspiracy with the plaintiff whereby the goods were purchased at an excessive price, and the excess paid by plaintiff to Wright, and that in furtherance of such conspiracy the plaintiff in such transactions overcharged the defendant in the sum of $200. In the second count the defendant alleged that between the 1st day of August, 1906, and the 1st day of August, 1907, it was the owner and lawfully possessed of certain “cast-iron piping” —scrap iron — of the value of $300, and that “on divers
The defendant was engaged in manufacturing and furnishing gas in Salt Lake. City; the plaintiff in a foundry business. In support of the thefts and conversions alleged in its counterclaim, the defendant called but one witness, its superintendent of distribution, who, in substance, testified: At the time in question the defendant was laying about sixty miles of gas mains along the streets of the city. It furnished its own material. The work was done under
Robert Croft, Jr., who owned about 4900 shares of the capital stock of 10,000 shares of the plaintiff, was the president and general manager of the plaintiff corporation. His father, Robert Croft, Sr., seventy-three years of age and owning thirty shares, was its secreta,ry, bookkeeper, and collector. Fred Croft a son of Robert Croft Sr., and a stockholder of the company, had a personal controversy with the plaintiff over matters between him and' it. He consulted an attorney about it, the same attorney who represented the defendant in this litigation. Fred took from the private papers .of the plaintiff a returned check which had been issued by the plaintiff to Wright for fifty-six dollars, and indorsed by him, and the stub from which the check had been detached and delivered them to the attorney. It is not made to appear that they had anything to do with his controversy. The stub, when it was delivered to the defendant’s attorney by Fred, had written on it the words “for iron, and commission.” This, with Fred’s consent, was communicated to the general manager of the defendant and the check and stub shown him. His suspicions were aroused that Wright had some kind of dealings with the plaintiff in which money was paid him, and that he had failed' to account to the defendant for it. Thereupon he directed the witness, the defendant’s superintendent of distribution, and his stenographer, to visit the Crofts and interview them. They visited the plaintiff’s place of business and there found Croft, Sr., alone. Among other things the witness said to him: “Information has reached us to the effect that Wright sold scrap iron to you.” As testified to by the witness, Croft first denied it; then he said that Wright had sold him scrap iron, but he presumed that he was an employee
This, in substance, is all the evidence adduced by the defendant in support of its counterclaim that the plaintiff at divers times “unlawfully took and carried away” iron belonging to the defendant “and converted and disposed of the same for its own use.”
Two witnesses testified on behalf of the plaintiff, Eobert Croft, Sr., and Eobert Qroft, Jr. They denied that they or the plaintiff had received any iron from Wright or the defendant, except the seven tons and 1572 pounds for which admittedly the defendant was given credit and was paid. They testified that when the defendant began its construction work it was purchasing foundry supplies from other foundries in the city. Thereafter Wright called on the Crofts and told them that he was in a position to give the plaintiff orders for supplies and that he could throw a good deal of work to it; but, if he did, he thought he should be ■entitled to a commission on the amount of goods sold by plaintiff to the defendant. After negotiating back and forth as to the rate the plaintiff finally agreed to give him ten per cent. Thereafter the plaintiff received orders from the defendant for foundry supplies and furnished to the defendant in all about $3300 worth, for which plaintiff was paid in full by the defendant, except the balance sued for of $285. When the last check was issued to Wright, the amount so sold and delivered was about $2580. The Crofts further testified that the checks issued by plaintiff and delivered to Wright were all in payment, not of scrap iron, but of commissions. Croft, Sr., who wrote the checks, testified that the stub after it had been taken by Fred and when it was returned to the plaintiff had on it the words “for iron
Upon these issues and upon this evidence tbe court instructed tbe jury to find for tbe plaintiff on tbe issues presented by tbe complaint for tbe full amount sued for, together with interest. Upon tbe issue presented by tbe counterclaim, tbe court charged:
(5) That “in order to establish defendant’s counterclaim the burden is on tbe defendant to prove by a preponderance of tbe evidence tbe amount of cast-iron pipe, if any, belonging to tbe defendant that tbe plaintiff unlawfully took ■or carried away, if any, and, second, tbe reasonable market value thereof.”
The court also charged:
Tbe court further charged:
“(8) If you find from a preponderance of tbe evidence that at least part of tbe moneys paid to Wright by tbe*541 plaintiff company was paid for scrap iron of tbe defendant 'Company wrongfully sold to tbe plaintiff company by said Wrigbt, but you are unable to determine definitely tbe exact amount so paid, tben you are instructed tba.t it is peculiarly witbin tbe knowledge of the plaintiff company as to just bow much was paid for scrap iron, if any, and bow much was paid as commission, if any, and witbin plaintiff’s power to explain and show definitely tbe amount for each; and you have tbe right, in tbe absence of any such showing and ■explanation, to assume, if under all tbe circumstances of tbe case you find it is a fair assumption, that all of said moneys so paid to Wrigbt were paid to him for scrap iron, and you may resolve reasonable doubts as to tbe amount, if any, of such scrap iron so sold to tbe plaintiff most strongly against tbe plaintiff company. It is tbe policy of tbe law not to permit a wrongdoer to profit by bis own wrongdoing; but, before you can apply this principle, you must believe from a preponderance of the evidence that tbe plaintiff company was in fact a wrongdoer and actually received from Wrigbt scrap iron wrongfully taken by Wrigbt from tbe defendant ■company.”
Tbe proposition as to burden of proof, and as stated in paragraph five of tbe charge, was correctly stated. Let it also be assumed that tbe proposition as stated in paragraph six, if witbin tbe allegations of tbe counterclaim, was also correctly stated. But tbe propositions and principles stated in paragraph eight are, we think, erroneously stated. Tbe court apparently bad in mind tbe principle applicable to proceedings to reclaim or to recover tbe value of property wrongfully, fraudulently, or negligently commingled or confused with other property of like character, and where, because of such commingling or confusion by a wrongdoer, tbe property or its value sought to be reclaimed or recovered was ‘not capable of identification. And on that theory does the respondent defend tbe charge. Hence cases are cited that, where one fraudulently or wrongfully or negligently commingled or confused property of another with that of bis own of like character, tbe burden is on him to designate
No claim was made nor is there any evidence to support tbe. claim that tbe plaintiff commingled or confused defendant’s property with plaintiff’s. Tbe charge is that tbe plaintiff unlawfully took and carried away property belonging to tbe defendant and converted it. That allegation was denied. Upon that issue tbe defendant bad tbe burden of proof. That burden did not shift. It was upon tbe defendant when tbe case opened, so continued throughout tbe trial, and so remained when tbe evidence closed and tbe case let to tbe jury. There can be no doubt of that. And so tbe court charged in paragraph five. But in paragraph-eight the court wholly destroyed it. Nor can tbe charge be justified on tbe theory of particular facts resting peculiarly within tbe knowledge of tbe plaintiff. It cannot be said that tbe alleged facts that tbe plaintiff unlawfully took and carried away property belonging to tbe defendant rested peculiarly within tbe knowledge of tbe plaintiff. Tbe defendant made the charge and it was required to prove it. As has been seén, tbe defendant adduced no evidence that tbe plaintiff wrongfully or unlawfully took and carried away any iron belonging to tbe defendant. Neither did it show that Wright wrongfully or unlawfully took a pound of its iron, or wrongfully or unlawfully sold or delivered' any to-the plaintiff. Neither 'did tbe defendant otherwise prove that tbe plaintiff wrongfully dr unlawfully 'came into possession of "a pound of tbe defendant’s iron, or that it received any'iron from tbe defendant for which tbe defendant bad not been given full credit. It did show that tbe plaintiff received seven tons and 1572 pounds of tbe defendant’s iron, but at tbe same time also proved that it was fully paid' for
The only legitimate inference upon the record is that Wright had authority to sell and dispose of the scrap iron. At least there is ample evidence from which such an inference may be deduced. If he had no such authority, the defendant well could have shown it. Instead of showing the want of such authority, it adduced evidence which rather tended to show that he had authority. Hence, in view of the undisputed evidence, the admission of Croft that he nad received iron from Wright and paid him for it does hot support the claim that the plaintiff wrongfully or without authority received the defendant’s iron and converted it. In the next place, the admission of Croft, Sr., was not a binding admission of the plaintiff. He was the secretary of the plaintiff corporation, and its bookkeeper, and collec
The order, therefore, is that the judgment of the court below be reversed and vacated and the case remanded to the district court, with 'directions to dismiss the counterclaim and to enter a judgment in favor of the plaintiff for the amount alleged in its complaint, together with interest thereon. The plaintiff is awarded all costs on the appeal and all taxable costs in the court below, except those incurred on the second trial.