Dunham v. Travis

• Decision Date: 05 July 1902
• Docket Number: 1362
• Citation: 25 Utah 65,69 P. 468
• Court: Utah Supreme Court
• Parties: C. C. DUNHAM, Respondent, v. W. E. TRAVIS, Appellant

69 P. 468

25 Utah 65

C. C. DUNHAM, Respondent, v. W. E. TRAVIS, Appellant

No. 1362

Supreme Court of Utah

July 5, 1902

Appeal from Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action by the plaintiff to recover a sum of money alleged to be due under the terms of a written contract. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED AND JUDGMENT FOR DEFENDANT DIRECTED.

Messrs Stephens & Smith and Ashby Snow, Esq., for appellant.

Messrs C. F. & F. C. Loofbourow for respondent.

BASKIN, J. MINER, C. J., and BARTCH, J., concur.

OPINION

BASKIN, J.

--It is alleged in the complaint "that on the eleventh day of May, 1895, the defendant, W. E. Travis, had a contract with the United States Government, in due form of law, for the transporting of the United States mails on a mail route known as No. 43349,' from Belle Plaine, in the State of Iowa, to Irving, in said State of Iowa, which contract ran from the first day of July, 1895, to the thirtieth day of June, 1899, both dates inclusive, and had obtained permission from the United States to sublet the work under said contract; and on the said eleventh day of May, 1895, the said defendant, W. E. Travis, entered into a contract in writing with this plaintiff, copy of which is hereto attached, and marked 'Exhibit A,' by the terms of which he sublet to this plaintiff the work of carrying the mails over said route from the first day of July, 1895, to the thirtieth day of June, 1899, both dates inclusive, and by the terms of which agreement the plaintiff agreed with the defendant to carry the United States mail on said route, from Belle Plaine to Irving and back, two times a week during the term of said contract; and the defendant undertook and agreed to pay to plaintiff for such service the sum of $ 79.50 per annum. It was further provided in said contract that, in case the Postmaster-General of the United States should require said mails to be transported over said route six round trips a week, the plaintiff would so transport said mails in accordance with such requirement, and in that case the defendant would pay to the plaintiff for such service the sum of $ 238.50 per annum." The answer, after a denial of each and every allegation of the complaint, except as thereinafter admitted, contained the following allegation: "And for a further answer, and as an affirmative defense to the plaintiff's alleged cause of action, this defendant alleges. "And following this the answer, in substance alleges that the contract between the Government and the defendant was for carrying the mail over said route three times per week from July 1, 1895, to the thirtieth day of June, 1899, for the sum of $ 84 per year, and that it was therein provided that additional service might thereafter be required by the Postmaster-General, and that the defendant would be allowed a pro rata increase of compensation for such additional service, and that the defendant might, by permission of the Postmaster-General, and in accordance with all of the conditions of said contract, sublet the same; that thereafter, and on or about the eleventh day of May, 1895, this defendant's agent and the plaintiff entered into a verbal agreement, to be reduced to writing, whereby the said plaintiff agreed with this defendant to carry the mail over said route No. 43349, three times per week from the first day of July, 1895, to June 30, 1899, in accordance with the permission which had been granted to this defendant by the Postmaster-General of the United States, and in full compliance with the laws and regulations, and subject to all the requirements of this defendant under his said original contract with the United States Government, for the sum of $ 79.50 per annum for said service at three times a week, or, in case said service should be increased, for an additional amount not to exceed a pro rata increase of compensation, and, in case the service was required by the Postmaster-General to be six times per week, for the sum of $ 159 per annum; that it was well known by his said agent and said plaintiff that this defendant's contract with the United States Government was to carry the said mails over said route, during the time mentioned, three times per week, but that in drawing up said contract, through accident and mutual mistake of the parties, it was recited therein that this defendant's contract with the United States Government was to carry the mail over said route two times per week, when it should have stated three times per week, and said contract further contained a promise on behalf of this defendant to pay to the plaintiff the sum of $ 79.50 per annum for two round trips per week, when it should have stated, and would have stated except for accident and the mutual mistake of the parties, the sum of $ 79.50 per annum for three round trips per week; and, further, said contract contained a promise on behalf of this defendant to pay to plaintiff the sum of $ 238.50 per annum for six round trips per week, when the same should have contained the provision for the payment of $ 159 per annum for six round trips per week, and would have so recited except for the said accident and mutual mistake of the parties. The prayer of the answer is as follows: "Wherefore this defendant prays judgment that the said written contract be reformed on account of the accident and mutual mistake of the parties, and that the same be made by the decree of this court to conform to the true intent and agreement of said parties, and that plaintiff take nothing by his complaint, and the defendant have such further relief as is just and equitable, and for his costs." It is conceded by both parties that the service was increased, under the requirement of the postmaster, to six times per week. The plaintiff made no reply to the answer.

The plaintiff was permitted, over the objection of the defendant to introduce, in chief, testimony of witnesses tending to disprove the alleged mutual mistake in drafting the written contract. The defendant, when plaintiff rested, moved for judgment upon the cross complaint on the ground that there was no reply thereto. The motion was overruled, and the plaintiff recovered a judgment for $ 358.64 and costs. The refusal of the trial court to sustain this motion is assigned as error. The appellant's contention in respect to this subject, as stated in the brief of his counsel, is as follows: "The appellant's first contention is that the court should have rendered judgment in favor of the defendant, reforming the instrument sued on, for the reason that the plaintiff had not replied to or controverted in any way the defendant's counterclaim, thereby admitting all of the facts as true. It is true that the pleading was not designated as a 'counterclaim' or 'cross-complaint,' but the affirmative allegations, together with the prayer for relief stated a cause of action in favor of the defendant and against the plaintiff, which, if set up in a complaint, would have been a foundation for a judgment. Our contention is that the court looks at the matter contained in the pleading and the prayer, and, regardless of how the pleading may be designated, relief is granted in accordance with the allegations in the answer, and not because it may be entitled by any peculiar name. If the pleading is merely an answer, we are not entitled to any relief under it. If, however, the allegations are sufficient to make it a counterclaim, then we are entitled to relief, and a reply is necessary." In answer to this, counsel for the respondent contend that the new matter set up in the answer was, in terms, pleaded merely as a defense to plaintiff's cause of action, and was not, therefore, admitted by the failure of the plaintiff to traverse the same in a replication. There was no objection made before or at the time of the trial by plaintiff to the form of the answer. In the case of Perego v. Dodge, 9 Utah 3, 33 P. 221, 222, the answer denied the material allegations of the complaint, and alleged grounds for affirmative relief, but did not, in expressed form, contain a cross-complaint or counterclaim. The court, in its opinion, said: "The appellant contends that the trial court erred in adjudging that the respondents were the owners of the premises in controversy, for the reason that respondents filed no counterclaim or cross-complaint. We do not think this contention can be sustained. No objection was taken to the answer before judgment, and the respondents alleged facts which seem to entitle them to affirmative relief under section 2326, Revised Statutes United States. It is not what a pleading is called which determines its character, but the facts which it sets up. Its character must be determined by the court. The relief granted seems to have been proper, under the facts stated and the prayer of the pleadings." On an appeal of the case (163 U.S. 160, 164, 16 S.Ct. 971, 41 L.Ed. 113), this view was expressly affirmed. In the following cases it is held that it is immaterial what the defendant called his pleading; whether the designated it an "answer" or "cross-complaint," its character will be determined by the court. It is the facts set up in the pleading which make it an answer or cross-complaint. Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Meeker v. Dalton, 75 Cal. 154, 16 P. 764; Gregory v. Bovier, 77 Cal. 121, 124, 19 P. 232; Miller v. Fletcher, 100 Cal. 142, 148, 34 P. 637; Wittenbrock v. Parker, 102 Cal. 93, 106, 36 P. 374, 24...