Chadwick v. Larsen

• Decision Date: 23 March 1953
• Docket Number: No. 5623,5623
• Citation: 75 Ariz. 207,254 P.2d 1020
• Parties: CHADWICK v. LARSEN et al.
• Court: Arizona Supreme Court

Page 1020

254 P.2d 1020

75 Ariz. 207

CHADWICK v. LARSEN et al.

No. 5623.

Supreme Court of Arizona.

March 23, 1953.

James Elliott Dunseath, of Tucson, for appellant.

Clifford R. McFall and Wilbert E. Dolph, Jr., of Tucson, for appellee.

STANFORD, Chief Justice.

This is an appeal by Paul J. Chadwick, plaintiff below and hereinafter referred to as appellant, from a judgment for defendant, Andy A. Larsen, hereinafter referred to as appellee, and from the denial of his motion for a new trial. The action was tried to the lower court without a jury.

Appellant's complaint alleged that he had entered into an oral contract with appellee for certain construction work on a section of highway on the Tucson-Ajo Highway; that he had agreed to do certain work at a certain unit price set forth in his complaint, and that appellee had promised to pay him such unit prices upon completion of his performance under the contract; that he had completed his performance under the contract and that upon multiplying the amount of work done by the unit prices agreed upon, the contract price for said work was $37,014.30; that appellee had paid him the sum of $29,882.25 and no more; that appellee was and is indebted to him in the sum of $7,132.05 under the terms of said contract, and that demand had been made upon appellee for said sum, and praying for judgment in the aforementioned sum of $7,132.05.

Defendant by his answer denies the oral contract claimed by the plaintiff, admits that the plaintiff performed the work as claimed, and alleges the contract under which such work was performed to be that appellee employed appellant at a salary of $125 per week and, if the total cost of the work was less than the aggregate of the sum arrived at on the unit prices mentioned in the complaint, the appellee would pay the defendant as additional compensation the difference between such total cost and such aggregate sums. The answer further alleges that the total cost was greatly in excess of said aggregate sums and therefore plaintiff is not entitled to recover.

The evidence shows that appellant was employed by appellee prior to May 5, 1950 as a bookkeeper, and that on said date appellee was awarded a contract by the Arizona State Highway Department to construct some 20 miles of highway in the southern part of Arizona. Thereafter, according to the testimony of appellant, he submitted a bid to appellee for the concrete work involved in the job. Appellant further testified that appellee accepted this bid and offered to finance the plaintiff in carrying out his subcontract and to relieve him of the necessity of providing a bond.

It is undisputed that appellee, furnished all material for the work done, carried the workmen working under appellant on appellee's payroll, and gave appellant a check for $125 per week, less deductions for withholding and social security taxes during the period appellant was on this job.

Appellant testified that he was forced by appellee to use a crane furnished by the latter in pouring the concrete, even though it had been agreed between the parties that if the crane proved unsatisfactory it would be discontinued. Appellant contends that the rental on such crane was an excessive charge against the job.

There was considerable evidence furnished on behalf of appellant by experts as to the most efficient manner of doing the job of pouring the concrete boxes and cattleguards.

After appellant had rested his case, the appellee moved for judgment on the ground that appellant had failed to prove his case. This motion was granted by the trial court, and later the judgment was amended by the lower court on motion of appellee to provide dismissal of appellant's complaint with prejudice.

Appellant has set forth three assignments of error which we will consider separately.

Under the first assignment, appellant states that the lower court erred in granting appellee's motion to dismiss for the reason that such a motion is in the nature of a nonsuit or demurrer to the evidence, and the trial court must not weigh the evidence but must give appellant's evidence all the value to which it is legally entitled, including every legitimate inference which may be drawn therefrom, and must completely disregard all conflicting evidence.

Appellant cites the following cases as authority for the above proposition: Singleton v. Singleton, 68 Cal.App.2d 681, 157 P.2d 886; Chenoweth v. Hoey, 135 Md. 97, 108 A. 478; Taylor v. United Broadcasting Co., D.C.Mun.App., 61 A.2d 480.

Appellee made his motion to dismiss under Section 21-916, A.C.A.1939, which is Rule 41(b) of Federal Rules Procedure. That section reads as follows:

'21-916. Involuntary dismissal--Effect thereof.--For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'

In the case of Barr v. Equitable Life Assur. Soc. of United States, 149 F.2d 634, the Ninth Circuit Court was confronted with the question of what the duty of the trial court was when ruling on a motion to dismiss under Rule 41(b). That court held:

'(2) The trial proceeded to the conclusion of the plaintiff's evidence, from which the trial judge could have inferred that the plaintiff had not maintained her burden of proof. The court adjudged that she take nothing and dismissed the suit.

'We agree that there is evidence warranting the inferences of fact supporting...