Davis-Robinson v. Patee

• Decision Date: 05 May 1936
• Docket Number: 1919
• Citation: 49 Wyo. 470,57 P.2d 681
• Parties: DAVIS-ROBINSON ET AL. v. PATEE
• Court: Wyoming Supreme Court

57 P.2d 681

49 Wyo. 470

DAVIS-ROBINSON ET AL. v. PATEE

No. 1919

Supreme Court of Wyoming

May 5, 1936

ERROR to the District Court of Natrona County; C. D. MURANE, Judge.

Action by Fred Patee against Josina Davis-Robinson and another. To review a judgment for plaintiff, defendants bring error.

Affirmed.

For the plaintiffs in error, there was a brief by John C. Pickett and Allen A. Pearson of Cheyenne and oral argument by Mr Pearson.

Practically all of the matters involved can be grouped under two questions: was the work done in a workmanlike manner, and were the specifications carried out? It is our contention that the contractor did neither. The authorities have defined the meaning of the term calling for workmanlike performance of contracts. Holland v. Rhoades, (Ore.) 106 P. 779; Ideal Company v. Kramer, (Iowa) 102 N.W. 840; Fitzjerald v. La Porte, (Ark.) 40 S.W. 261; Auginbaugh v. Coppenheffer, 55 Pa. 347; Smith v Clark, 58 Mo. 145; Burnett v. Miller, (Ala.) 88 So. 871; Morris v. Fox, (Ind.) 135 N.E. 663; Fairbanks Company v. Miller, (Okla.) 195 P. 1083; 9 C. J. 749. We believe the record in this case will show that the contract was not performed in a workmanlike manner, and that the specifications agreed upon were not followed. The experienced witnesses who testified in the case were unanimous in their opinions that the concrete mixture used in the work was not in accordance with the specifications. It was also shown by the evidence that the work was so defective as to be utterly worthless for the purpose intended.

For the defendant in error there was a brief and oral argument by William O. Wilson of Cheyenne.

Central Trust Company defaulted and has no standing in this case. The judgment for plaintiff was fully sustained by the evidence. Preponderance of evidence is not established by the number of witnesses. Montgomery v. Empey, 36 Wyo. 37. The findings must be liberally construed in support of the judgment. Hinton v. Saul, 37 Wyo. 78. One of the conflicts in the evidence arose over the specifications and none of defendant's witnesses testified that there were any written specifications. Woollacott v. Meekin (Cal.) 91 P. 612; Nave v. McGrane, (Idaho) 113 P. 82. The only reference to specifications was as to the area and price of the work. A judgment based upon conflicting evidence will not be disturbed on appeal. Rainsford v. Messengale, 5 Wyo. 1. If there be evidence to sustain the findings, the judgment will not be reversed. Hester v. Smith, 5 Wyo. 291. This rule has become so clearly established by a long line of decisions in this court, that it seems unnecessary to do more than refer to the fact. There must be an entire lack of substantial and credible evidence to justify the reversal of a judgment. Land Company v. Beckstead, 27 Wyo. 173; McFadden v. French, 29 Wyo. 401; Edwards v. Willson, 30 Wyo. 275. To justify reversal, the findings must be clearly erroneous or against the great weight of evidence. Williams v. Yocum, 37 Wyo. 432; Wakefield v. Lord, 38 Wyo. 301; Boyle v. Montford, 39 Wyo. 141; Farmers Bank v. Company, 39 Wyo. 238; Hitshew v. Rosson, 41 Wyo. 509; Bank v. Ennis, 44 Wyo. 497; Griffin v. Rosenblum, 46 Wyo. 40; Delfelder v. Poston, 42 Wyo. 176; In re Loprowski, (Wyo.) 46 P.2d 61. The trial judge viewed the premises in controversy and for that reason the findings are entitled to special weight. The Wyoming statute permits juries to view situations or objects, and when a court is the trier of facts, he is in the same position as the jury. W. R. S. 89-1307; Jenkins v. State, 22 Wyo. 34; Rollins v. Duncombe, 24 Wyo. 341. The purpose of such view may be to clear up a conflict in the evidence and to consider the premises viewed as substantive evidence, or a middle ground between those two views. 2 Bancroft's Code Practice, Sec. 1225, 1226; Machader v. Williams, 43 N.E. 324. The same rule is followed in about all the states, and it is generally held that knowledge gained by independent investigation by a judge is evidence of an important character. Vaughn v. County, (Cal.) 205 P. 21; Wall v. U. S. Mining Company, 232 F. 613; Railroad Company v. Ditch Company, (Colo.) 52 P. 224; C. K. & W. R. Company v. Parsons, (Kan.) 32 P. 1083; C. R. I. & P. R. Company v. Farwell, (Neb.) 83 N.W. 71. Substantial performance on the part of plaintiff was all that was necessary. Finley v. Pew, 28 Wyo. 342; Lumber Company v. Producers Construction Company, 35 Wyo. 381.

RINER, Justice. KIMBALL, CH. J., and BLUME, J., concur.

OPINION

RINER, Justice.

In this case, the action which culminated in a judgment in his favor was brought by Fred Patee, as plaintiff, against Josina Davis-Robinson, as defendant, in the district court of Natrona County. This judgment we are asked to review by proceedings in error in behalf of the party last mentioned. For convenience, subsequently herein the plaintiff will generally be referred to as the "contractor" and the defendant as the "owner."

Under date of July 22, 1930, pursuant to an agreement partly written and partly oral, the contractor undertook to do certain cement and patch plaster work for the owner in the basement of her house and the sun porch thereof and also outside of the house, at the stated price of $ 400.00. Additionally he did certain extra labor and furnished extra materials for items not included in the original agreement, which increased the total amount claimed by him to be due, to the sum of $ 595.67. The owner having declined to pay anything upon the completion of the work, the contractor brought suit to recover that amount.

The owner in her answer, in addition to denying the agreement relied upon by the contractor, claimed that the work done by him was not performed as it should have been and was entirely worthless to her. Accordingly she asserted that she owed him nothing.

In that part of the contract between the parties which was in writing and in the form of a letter addressed by him to the owner, the contractor stated that he would "furnish all the cement and sand and run the forms that are set or that you will have set, according to the specifications furnished by Mr. Engelke, * * * * * * doing all the work in a thorough, workmanship manner." Engelke was a cement contractor who had previously submitted a bid to the owner for doing most of the work now involved and which bid she declined to accept.

The trial was to the court, and upon the conclusion of the evidence, after both parties had rested, the court announced: "I think I will hear this other matter, then I am going to take a look at that work myself." The court reporter additionally stated in the transcript that: "The court later inspected the work in controversy."

Thereafter the court entered the judgment complained of, in favor of the contractor, for a sum less by $ 30.00 than the amount claimed by him, i. e., the sum of $ 565.67, together with interest and costs. This judgment also recites that the court, after the submission of the cause without argument, "thereafter viewed the property and the work constituting the subject matter of this cause and the materials furnished therein." Among the special findings set forth by the court preliminary to the judgment rendered were the following:

"That the plaintiff has fully and completely performed the contract entered into between plaintiff and defendant Josina Davis-Robinson and is, therefore, entitled to recover the sum of Four Hundred and no/100 ($ 400.00) Dollars.

"That plaintiff regularly and properly performed certain extra work in addition to the express contract between plaintiff and defendant in the amount of One Hundred Sixty-five and 67/100 ($ 165.67) Dollars.

"That all of the work done by plaintiff was done according to the specifications furnished to another contractor and was done in a thorough and workmanlike manner."

Counsel for the owner in his brief states that the questions to be resolved at this time, from an examination of the record, are: Was the work done in a workmanlike manner, as the contractor stated in his letter aforesaid he would do it, and, were the specifications as furnished to Mr. Engelke carried out?

It is obvious that the answers to these questions depend upon a determination of fact issues solely. The district court had the witnesses of the several parties before it. We have but the written record of their testimony. The owner concedes in her brief that, "the first impression," upon examining the transcript of the testimony in the case, "may be that there is a conflict" between that produced on behalf of the contractor and that submitted on her behalf. In that connection, she refers to the rule of appellate procedure so generally applied heretofore by this and other reviewing courts of the nation, that where there is substantial evidence to support the finding of the trial court, the evidence in the case being in conflict, that finding will not be disturbed on appeal or error. But it is urged that there is "no decided conflict in the testimony," and that the judgment "is against the great weight of evidence in the case."

We are however, obliged to conclude, after a careful study of the record, even in the light of the painstaking analysis and survey of the statements of the several witnesses and their qualifications in the case, submitted by counsel, that the "first impression," referred to above, is likewise our last impression. We think that there is a sharp conflict between the witnesses for the respective parties on both the questions above suggested, as well as concerning just what the specifications "furnished to Mr. Engelke" were; that there is substantial evidence to support the findings of the trial court, and that it cannot accurately be said that the "great weight of evidence" in the...