Coulter, Inc. v. Allen
Decision Date | 13 March 1981 |
Docket Number | No. 5396,5396 |
Citation | 624 P.2d 1199 |
Parties | COULTER, INC., a Wyoming corporation, Appellant (Defendant), v. Dale ALLEN, d/b/a Rocky Mountain Concrete, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Dwight F. Hurich of Hawkey, Sowada & Hurich, Gillette, signed the brief and appeared in oral argument on behalf of appellant.
There was no appearance on behalf of appellee.
Before ROSE, C. J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.
Appellant-defendant appeals from a judgment rendered on a jury verdict which awarded appellee-plaintiff $6,595.54 damages for breach of contract.
Appellant words the issues on appeal as follows:
We reverse and remand the case for a new trial.
Appellant and appellee entered into an agreement by which appellee was to perform certain concrete construction work on appellant's real estate development projects in Campbell County. Two "job work orders" were introduced into evidence and accepted by the parties as setting forth at least some of the terms of the agreement. Appellee testified on cross-examination:
The work orders were on preprinted forms, reflecting the work to have been ordered by Milt Coulter. They were signed by appellee. Instead of setting forth the contract amount in the sections of the form provided for doing so, "(as per certified amount)" was typed in. Appellee was designated as the contractor. One of the forms was dated August 27, 1979 for "PARKSIDE APARTMENTS" job and was to be billed to Coulter, Inc. The following was typed under the heading "DESCRIPTION OF WORK":
The other form was dated September 17, 1979 for "Fox Park Subdivision" job and was to be billed to Fox Park Development. 2 The following was typed under "DESCRIPTION OF WORK":
Payment for the work was made weekly. Each time, appellee signed a "CERTIFICATE FOR PAYMENT" which included the following:
"In consideration of the payment of the amount of this certificate/request for payment the undersigned does hereby release any and all claims and/or rights arising under or by virtue of the contract/agreement, waives any and all rights of lien and certifies that all subcontractors, material suppliers and labor have been paid in full for material, services and/or labor arising under or by virtue of the contract/agreement."
In mid-October, a disagreement developed between appellant and appellee, and the contractual relationship was terminated. Appellee then presented a claim to appellant for work which he contended was performed but for which he was not paid. If not all, most of this work was performed during the periods for which appellee had signed a "CERTIFICATE FOR PAYMENT."
Before trial, appellant's motion in limine was denied. The motion was to prohibit the introduction into evidence of two letters. One was a letter dated November 30, 1979 from appellee's attorney to appellant advising of a claim for $5,508.15 and stating in part:
* * * "
The other letter was a one-page letter with a two-page enclosure. It was dated December 10, 1979 from Deb Bricker, the Assistant Secretary/Treasurer of appellant to appellee's attorney. It was in response to the November 30, 1979 letter from such attorney. It reads in pertinent part:
The two enclosed sheets (hereinafter referred to as enclosures) contained figures on amounts billed and paid to appellee on the two projects. They concluded with the following:
At trial, appellee offered the enclosures in evidence. They were admitted over objection that they were part of the settlement negotiations and were only part of an entire letter. Thereafter, appellant offered the December 10, 1979 cover letter into evidence, and it was admitted without objection.
We are here concerned only with the possibility of error in the admission of the enclosures. The November 30, 1979 letter was not offered or received into evidence. It was before the court during the motion in limine and was pertinent to the decision of the court relative thereto. The December 10, 1979 cover letter had similar pertinency, but appellant cannot predicate error on its admission at his own behest and without objection by appellee. 3
Rule 408, W.R.E. provides:
The language of the enclosures to the effect that appellant would like to "settle this out of court" and "I hope we can work some arrangement out" together with figures explaining payments and overages which "are not complete by any standard" must be taken to be statements made in compromise negotiations in attempting to settle a claim, both as to validity and amount. Rule 408 is founded on public policy to encourage out of court settlements and is in the nature of a privilege. Advisory Committee's Note to Rule 408, Federal Rules of Evidence; 4 Wright & Graham, Federal Practice and Procedure: Evidence § 5302; Weinstein's Evidence P 408(02). The common-law rule relative thereto was enlarged to preclude the introduction of "evidence of 'conduct or statements made in compromise negotiations.' " Wright & Graham, supra, § 5307; Weinstein's Evidence P 408(01).
A controversy certainly existed between the parties as to the amount owed, if any, by appellant to appellee and as to the liability, if any, owed by appellant to appellee. Appellee did not purport to offer the exhibits for any purpose other than to establish the amount of damages. At the argument on the motion in limine, appellee was asked by the court why he wanted the material in evidence. Appellee's answer was that the statements on how much was claimed, on how much he was not paid, that "they say they don't owe him all this money," that "this is why we don't pay it to you" are "very relevant as far as damages that Mr. Allen has suffered." The evidence was of "conduct or statements made in compromise negotiations," "to prove liability for or invalidity of the claim or its amount." The evidence was exactly that prohibited by Rule 408, W.R.E. It was error to deny the motion in limine and to admit the enclosures into evidence.
* * * "Weinstein's Evidence P 408(06), pp. 408-29.
The enclosures contained a number of computations which could have been used by the jury in arriving at the damage figure. Other evidence was sketchy with reference to specific figures. Appellee testified that he "figured" that he was...
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...release is all that is necessary to provide the court with the parties' intent, the appellees rely upon our opinion in Coulter, Inc. v. Allen, Wyo., 624 P.2d 1199 (1981). Preliminarily, it should be noted that the Coulter case is in contract rather than the law of torts which furnishes the ......
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