Clifton, Applegate & Toole v. Big Lake Drain Dist. No. 1, Stillwater County

• Decision Date: 04 May 1928
• Docket Number: 6218.
• Citation: 267 P. 207,82 Mont. 312
• Parties: CLIFTON, APPLEGATE & TOOLE v. BIG LAKE DRAIN DIST. NO. 1, STILLWATER COUNTY.
• Court: Montana Supreme Court

267 P. 207

82 Mont. 312

CLIFTON, APPLEGATE & TOOLE v. BIG LAKE DRAIN DIST. NO. 1, STILLWATER COUNTY.

No. 6218.

Supreme Court of Montana

May 4, 1928

Rehearing Denied May 22, 1928.

Appeal from District Court, Stillwater County; Stanley E. Felt Judge.

Action by Clifton, Applegate & Toole against the Big Lake Drain District No. 1, Stillwater County. Judgment for defendant and plaintiff appeals. Reversed and remanded, with directions.

Howard Toole, of Missoula, and Wood & Cooke, of Billings, for appellant.

Johnston Coleman & Johnston, of Billings, for respondent.

GALEN J.

The plaintiff, Clifton, Applegate & Toole, a corporation, hereinafter referred to as the contractor, brought this action against the Big Lake drain district No. 1, of Stillwater county, a body corporate, hereinafter designated as "the district," for damages because of the alleged breach of a contract executed September 3, 1919, for the construction of a certain tile drain in accordance with plans and specifications. The complaint is quite lengthy. Therein it is alleged, among other things, that by the terms of the contract the contractor was to be paid for labor and materials at stated intervals as the work progressed, on estimates to be made by the engineer in charge of construction; that on June 21, 1921, prior to the institution of this action, the engineer made an estimate in writing pursuant to the contract which covered work done and material delivered by the plaintiff to the amount of $11,717.19, which the district has failed and refused to pay, same and except as to the sum of $1,378.22, leaving a balance due and unpaid amounting to $10,338.97. In addition thereto, because of the alleged breach of the contract, the contractor seeks to recover the percentages reserved on that and previous estimates, aggregating $9,766.94. Other items of damages claimed by the contractor appear to have been waived, so that the contractor's right to recover from the district the full amount of the last estimate made by the engineer plus the percentages reserved, averred to total the sum of $20,105.91, together with interest, is the only issue necessary to be considered on this appeal.

By its answer, the defendant denies the damages claimed by the plaintiff, and alleges in defense that the plaintiff and the engineer "fraudulently conspired and colluded to defraud the defendant in further estimates of work performed and materials furnished by the plaintiff" under the contract, "by falsely pretending, claiming, and estimating that the width of the trench then constructed and paid for * * * was 4 feet, when in truth and in fact it was but 3 feet in width," as shown by previous estimates of the engineer and statements of the plaintiff; and, further, the defendant pleads an estoppel against the plaintiff by reason of its having theretofore received estimates and made its settlements with the district on the basis of a trench 3 feet in width. A counterclaim is pleaded and damages asked not requiring consideration. Plaintiff's reply denies all allegations of new matter in the defendant's answer. The cause was brought on for trial before the court sitting with a jury, and, at the conclusion of all of the evidence introduced by the parties, upon submission of the case, the jury regularly returned a general verdict in favor of the defendant. Judgment was duly entered on the verdict, and therefrom this appeal was perfected.

The only question presented by the plaintiff's several assignments of error necessary for consideration in disposition of the case is whether there is any substantial evidence to support the verdict and judgment.

At the outset, we are confronted with objection by the defendant to a consideration of the sufficiency of the evidence contained in the record presented, as it appears therefrom that the plaintiff permitted the case to go to the jury without objection, under instructions as to the law, presumed to be correct, since they are not incorporated in the record. It appears that the plaintiff made no motion for a directed verdict nor for a new trial. Thus question as to the sufficiency of the evidence was not presented to the trial court, the plaintiff having in no manner demurred to the evidence. A bill of exceptions was settled embodying the testimony and proceedings at the trial, and, as by the statute authorized, is incorporated in the record.

Since the enactment of section 9745, R. C. 1921, in civil cases, an appeal may be prosecuted to this court only from the judgment; however, motions for a new trial in the district courts have not been dispensed with (Id. §§ 9395 to 9401), and serve the same purpose as before the passage of the new statute governing appeals. Our amended statute provides:

"Except as above provided, the party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must, within fifteen days after the entry of judgment if the action was tried with a jury, or after receiving notice of the entry of judgment if the action was tried without a jury, or within such further time as the court or judge thereof may allow, * * * prepare and file with the clerk of the court and serve upon the adverse party a bill of exceptions, containing all of the proceedings had at the trial upon which he relies, in which bill the evidence shall, unless otherwise prescribed by a rule of the Supreme Court, be stated in narrative form, except that the particular portion of the record showing objections to the admission or rejection of testimony upon which the party preparing the bill expects to rely, shall be set out verbatim. * * * When settled, the bill must be signed by the judge or referee with his certificate to the effect that the same is allowed, and shall then be filed with the clerk." Section 9390, R. C. 1921.

And, further, that on appeals from an order other than one granting a new trial-

"the appellant must furnish the court with a copy of the notice of appeal of the judgment or order appealed from, and of all papers and evidence used on the hearing in the court below. Such papers, files, and evidence, when certified by the clerk of the court to be correct and accompanied by a certificate of the judge that such records have been used at the hearing in the district court, may be considered on appeal without further identification. Appeals from orders overruling the motion for a new trial are hereby abolished, and all questions heretofore raised on such an appeal may be raised on an appeal from the judgment." Section 9745, Id.

The record on appeal in this case was prepared pursuant to and in compliance with this last-mentioned statute. It is further provided that-

"The record on appeal from a final judgment shall consist of the judgment-roll, as defined in section 9409, together with all bills of exception settled and filed in the case, and a copy of the notice of appeal." Section 9402, R. C. 1921.

Where, as here, the record contains a bill of exceptions certified as authorized by the statute, but there appears to have been no motion made for a new trial, it will be examined solely to ascertain whether the verdict or judgment is supported by any substantial evidence. State v. Brantingham, 66 Mont. 1, 212 P. 499; Watts v. Billings Bench Water Users Association, 78 Mont. 199, 253 P. 260; Steven v. Potlatch Oil Co., 80 Mont. 239, 260 P. 119; Ramsbacher v. Hohman (Mont.) 261 P. 273. We may go no further in consideration of the evidence than was permissible under our former practice on an appeal from the judgment alone. This rule is established, and, while it may appear somewhat illogical, yet we must continue to follow it until the Legislature sees fit to change it-a simple process in the event it be found unsatisfactory. The correctness of the rule is conceded by counsel for the plaintiff. Applying it to this case, we find that we must consider the evidence, as the plaintiff contends that there is no evidence whatsoever to support the verdict. If there is no evidence to sustain it, it is manifest it should not be permitted to stand. On such a record we may not make examination into conflicting evidence or the weight of evidence, any more than was permissible under the former practice on an appeal from the judgment alone. And the rule is firmly established that, where there is substantial conflict in the evidence, this court will not interfere with the judgment. But where, as here, the judgment is attacked because of a total failure of supporting evidence, a question of law is presented requiring an examination of the testimony (Withers v. Kemper, 25 Mont. 432, 65 P. 422), and, if no substantial evidence is found to support a verdict, it should be plain that the court was in error in entering the judgment.

By the terms of the contract it is provided that payments are to be made by the district in accordance with a fixed schedule of prices per yard and per foot for different classes of work upon the engineer's estimates pursuant to general specifications attached, such allowances to be in full compensation for material, labor, tools, and equipment, and the construction of the work to completion as by the engineer required. Both general and specific specifications are attached, and made a part of the contract, wherein certain pertinent provisions are made, as follows:

"Engineer: The word 'engineer,' when found in the specifications, shall mean the engineer employed by the county drain commissioner or the engineer duly authorized by the county drain commissioner to take charge of the work. * * * In order to enable the said contractor to prosecute the work advantageously, the engineer shall once a month, or about the 1st day of each month, make an estimate in writing of the work done

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