Big Horn Lumber Company v. Davis
| Decision Date | 02 April 1906 |
| Citation | 84 P. 900,14 Wyo. 455 |
| Parties | BIG HORN LUMBER COMPANY v. DAVIS ET AL |
| Court | Wyoming Supreme Court |
Original Opinion of April 2, 1906, Reported at: 14 Wyo. 455.
Rehearing denied.
W. S Metz, of counsel, on petition for rehearing.
On petition for rehearing, it was argued and contended that the court misinterpreted the effect of the findings in respect to the November items as a part of the contractor's account that if the judgment is erroneous the cause should be remanded for new trial, instead of directing a judgment; and that on the facts plaintiff was estopped from claiming a lien.
ON PETITION FOR REHEARING.
In the former opinion in this case (84 P. 900) we stated that it was not contended that the inclusion of the November items of plaintiff's account in a partial statement rendered to the defendant Sanders and which was paid by her as set forth in the opinion estopped the plaintiff from claiming a lien for the amount actually due upon the account against the contractor, Davis. And it was further stated that it was not contended that an estoppel resulted from the delivery to Mrs Sanders by the contractor of his receipted bill which had been obtained in exchange for his check which had no value and was never paid, but payment of which upon its prompt presentation had been refused by the bank upon whom it was drawn. It is now insisted on a petition for rehearing by counsel for Mrs. Sanders that the question of estoppel was in the case, and that counsel did not intend to waive it. But the argument upon that subject is based almost entirely upon counsel's understanding of the evidence. They say that on the trial both parties introduced evidence, without objection, bearing directly upon the question of estoppel apparently forgetting that no part of the evidence is in the record before this court. We have only the pleadings, findings and judgment as the basis for our consideration of the case, and, as pointed out in the former opinion, the pleadings and findings do not establish an estoppel against the plaintiff. The answer of Mrs. Sanders alleged that on January 19, 1905, she demanded of plaintiff a statement of the balance due on account of materials used in her house, and was thereupon furnished with a statement of the November items (which had not been included in the receipted bill to Davis) and one other item, which she then paid. But it does not appear either by allegation of the answer, or in the findings, that she was misled in consequence of such partial statement to her injury, or that she was misled at all as to the actual facts and condition of the account. On the contrary it appears from the findings that six days prior thereto Mrs Sanders had been notified that there was $ 368.40 due the plaintiff from the contractor Davis for materials used in her house, for which the plaintiff claimed a lien on her property; and it is alleged in plaintiff's reply that promptly on the dishonor of the Davis check, the plaintiff informed Mrs. Sanders of such dishonor, and that they would look to her property for payment of the Davis account. It will hardly be contended that the circumstances of the check and receipted bill amounted to a payment of the account in fact; and as there is neither allegation nor finding that Mrs. Sanders was misled by reason of the receipted bill, as well as no allegation or finding that she paid anything to the...
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Becker v. Hopper
... ... Statutes of Missouri. ( Lumber Co. v. Davis, 14 Wyo ... 455.) It is true that the word "controversy" ... ...
- Big Horn Lumber Company v. Davis