Adams v. O'Connor

• Decision Date: 01 November 1899
• Docket Number: Civil 617
• Citation: 59 P. 105,6 Ariz. 404
• Parties: J. C. ADAMS et al., Defendants and Appellants, v. JAMES O'CONNOR et al., Plaintiffs and Appellees
• Court: Arizona Supreme Court

59 P. 105

6 Ariz. 404

J. C. ADAMS et al., Defendants and Appellants, v. JAMES O'CONNOR et al., Plaintiffs and Appellees

Civil No. 617

Supreme Court of Arizona

November 1, 1899

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge. Reversed.

The facts are stated in the opinion.

C. F Ainsworth, and Thomas D. Bennett, for Appellants.

Walter Bennett, and Joseph Campbell, for Appellees.

OPINION

DOAN, J.

-- This action was brought by plaintiffs and appellees herein against J. C. Adams and wife, appellants herein, in the district court of Maricopa County, on the eleventh day of December 1896, to recover $3,131.04 and costs, for labor and material furnished under certain contracts in the construction of the Hotel Adams, in Phoenix, and the foreclosure of a mechanic's lien on the property for that amount. Two contracts are set out in the pleadings, called "Contract A" and "Contract B," dated on April 23d and June 2d, respectively, which specified minutely, and at considerable length, the terms and provisions under which all materials were furnished and labor performed. The plaintiffs alleged a further and verbal contract for labor and material beyond that covered by the written contracts hereinbefore mentioned, which was denied in the answer, the defendants claiming that the labor and materials were all provided for in the second written contract. The defendant J. C. Adams demurred to the complaint -- First, on the ground that the allegations do not state facts sufficient to constitute a cause of action; second, that it appears on the face of the complaint, and from the contract attached thereto, which is a part thereof, that at the time of the commencement of this action there was nothing due on said contract, and that the action was prematurely brought.

The contract was made for "all brick laid in the walls of the building now being erected upon the corner of Center Avenue and Adams Street, and commonly known as the 'Hotel Adams,' upon the following terms and conditions," among which are: "The walls of said building, when completed, are to be measured," etc. "The parties of the first part agree to pay 75 per cent of the value of the brickwork that shall be laid in the walls, upon an estimate which shall be furnished every two weeks by the architects, Millard & Creighton, and shall pay the full amount remaining due within sixty days after said work has been completed, inspected, and accepted, by said architects, Millard & Creighton. . . . The parties of the second part agree to furnish the brick to be laid in all walls in the above-mentioned building, and to lay them, according to the plans and specifications which shall be furnished to them by the said party of the first part or by the said architects, Millard & Creighton, for $7 per thousand. Said walls to be measured when erected and completed," etc. "It is agreed by all the parties to this contract that the plans and specifications for said building are to be made by Millard & Creighton, architects, and that said plans at this date are not completed, and that the work shall be done in accordance with any plans furnished by said architects, and under their direction, and in a manner satisfactory to them," -- duly signed and sealed. The complaint alleged that all the conditions of contract A had been fully performed on the twenty-sixth day of September, 1896, except where plaintiffs had been delayed by delay or default of the defendants; that all the conditions of contract B had been performed on September 18, 1896, excepting cleaning down the walls, etc.; that all the conditions of the verbal contract were performed by plaintiffs prior to November 15th, and that on the eighteenth day of September, 1896, and repeatedly thereafter, until November 2d, plaintiffs applied to the architects, Millard & Creighton, to measure, inspect, and accept the work done under said contracts, and that the said architects unjustly and capriciously refused to measure up said work, and file an itemized declaration of the acceptance of the same; that, on the second day of November, Mr. Creighton, one member of the firm, did state to plaintiffs his approval and acceptance of the work done by plaintiff under said contracts; that the defendant J. C. Adams informed plaintiffs that he would not, at any time within sixty days after said date of acceptance, pay the balance due upon said contract; that the plaintiffs, on December 2, 1896, filed for record the contracts, together with an itemized account of the claim, as required by law, and served on defendant J. C. Adams a copy of said notice of lien; that the said J. C. Adams was the husband of said Anna D. Adams; and that, in all matters relative to the building mentioned under the contracts in question, the said J. C. Adams acted for himself and as agent of said Anna D. Adams, and as such agent had been in charge and in control of said work and building. On the trial of the case, the demurrer of the defendants was overruled. The testimony of the plaintiffs, relative to the verbal contract and the intentions and understanding of the plaintiffs upon signing the written contract B, was admitted in evidence over the objection of the defendants. The court refused to construe the contract B, when requested by the defendants, on motion, so to do, and, over the objection of the defendants, submitted to the jury for their consideration and interpretation, the written contracts, and the testimony of the plaintiffs explanatory thereof, as well as the testimony in regard to the verbal contract. The entire case, including the written contracts, was submitted to the jury under eleven instructions given at the request of the plaintiffs, fifteen given at request of defendants, and five special questions submitted to the jury by the court. The jury returned specific answers to the questions submitted, and a general verdict for the plaintiffs, and assessed the damage at two thousand dollars, upon which the court entered judgment in accordance with the verdict, and decree of foreclosure of the lien upon the property; from which judgment and decree, and the denial of the motion for a new trial, the defendants appealed.

1. The first and second errors assigned are directed to the ruling of the trial court in permitting the plaintiffs, over defendants' objection, to amend their complaint on the trial, and after the plaintiffs had rested. These rulings will not be reviewed by this court. The amendment of pleadings during trial is largely a matter of discretion, and in this instance the amendment was by substitution, so that the record does not enable this court to determine the scope or effect of the amendments, there being no exhibit of the original complaint. The only text furnished in the record is of the complaint as it read after the last amendment, with no means of determining what constituted the original complaint, or what part of the text resulted from the first and second amendments, respectively.

2. It is next alleged that the court erred in denying defendants' motion to dismiss the action at the close of plaintiff's case. This was practically a renewal of defendants' demurrer, but it goes somewhat further. The demurrer, although well taken as to the action on the contracts A and B, was properly overruled as to the verbal contract alleged in the complaint to have been made on October 10th, when the defendant J. C. Adams promised to pay plaintiffs "$7 per thousand for all brick laid up in the walls of an additional building, according to the terms of said contract" (with no terms given, except the defendants' promise to pay, and plaintiffs' agreement to furnish materials and perform the labor). This contract, if sustained by the evidence, would have been sufficient to constitute a cause of action.

3. The motion to dismiss, made after the plaintiffs rested, was based upon the theory that the plaintiffs had failed to sustain by any evidence the alleged verbal contract; that the terms of the written contract would exclude the possibility of any such verbal contract. The...