Evans v. Cheyenne Cement, Stone & Brick Company

• Decision Date: 24 March 1913
• Docket Number: 673
• Citation: 130 P. 849,21 Wyo. 184
• Parties: EVANS v. CHEYENNE CEMENT, STONE & BRICK COMPANY
• Court: Wyoming Supreme Court

130 P. 849

21 Wyo. 184

EVANS v. CHEYENNE CEMENT, STONE & BRICK COMPANY

No. 673

Supreme Court of Wyoming

March 24, 1913

ERROR to the District Court, Laramie County; HON. CHARLES E CARPENTER, Judge.

The Cheyenne Cement, Stone and Brick Company brought the action against David P. Evans to recover the alleged value of the labor and materials furnished in the construction of a sidewalk. The answer alleged that the work was done under a special contract, and that it failed to comply with the contract in certain particulars. Judgment was rendered for the plaintiff, and the defendant brought error. The other material facts are stated in the opinion.

Affirmed.

Ray E Lee and Charles F. Mallin, for plaintiff in error.

The petition is insufficient to authorize a recovery. (2 Ency. Pl. & Pr. 1010; 6 id. 643; 15 Ency. Law, 1007; Bannister v. Coal & Coke Co., 61 S.E. 338; Bushnell v Cogshall, 62 P. 1101.) It should have alleged that the defendant had accepted the work as done and promised to pay for it. The work having been done under a special contract the plaintiff could not recover the reasonable value thereof except by proving substantial compliance with the contract, or that the defendant had accepted the work; and the burden of proof was upon the plaintiff to show that the contract was abandoned in order to recover another measure of value than that agreed upon by the parties to the contract. (Clark v. Smith, 14 Johns. 326; Peoria v. Fruin-Bambrick Co., 169 Ill. 36; Denmead v. Coburn, 15 Md. 29; Dermott v. Jones, 2 Wall. 1; Eckel v. Murphy, 15 Pa. St. 488; Elliott v. Caldwell, 43 Minn. 357; Fogg v. Rapid Trans. Co., 90 Hun, 274; Lumber Co. v. Sahrbacher, 38 P. 635; Harris v. Sharpless, 202 Pa. St. 243; Hart v. Mfg. Co., 221 Ill. 444; Hood v. Smiley, 5 Wyo. 70; Houlahan v. Clark, 110 Wis. 43; Jennings v. Camp., 13 Johns. 94; Perry v. Quackenbush, 38 P. 740; Smith v. Brady, 17 N.Y. 173; Turner v. Wills, 64 N. J. L. 269; Zottman v. San Francisco, 20 Cal. 96.)

The evidence discloses that the defendant did not accept the work, and therefore the plaintiff could not recover upon his petition, unless upon showing performance according to the contract. (Bozarth v. Dudley, 44 N. J. L. 304; Johnson v. Feshefeldt, 20 L. R. A. (N. S.) 1069; Denmead v. Coburn, supra; Dermott v. Jones, supra.) The contract was not complied with, since the sidewalk area had not been graded, as required by the city specifications, which were made a part of the contract. The sidewalk was constructed below grade. The approval of the City Engineer was required by the contract; this being shown by the proposal made by the plaintiff and accepted by the defendant; by the permit for the construction of the sidewalk issued by the engineer; and by the ordinances of the city. The plaintiff was not entitled to recover without showing such approval by the engineer or an excuse for not obtaining it. (Ashley v. Henahan, 50 O. St. 559; Beck v. B. & L. Co., 85 N.Y.S. 323; Diehl v. Schmalacker, 57 id. 244; Guthat v. Gow, 95 Mich. 527; Hennessy v. Metzger, 152 Ill. 505; Cement Co. v. Beifeld, 173 Ill. 179; McAlpine v. Trustees, 101 Wis. 468; McNamara v. Harrison, 81 Ia. 486; Michaelis v. Wolf, 136 Ill. 68; Mundy v. L. & N. R. Co., 67 F. 633; Hardware Co. v. Berghoefer, 103 Wis. 359; Schmidt v. North Yakima, 12 Wash. 121; Smith v. Brady, 17 N.Y. 173; Vincent v. Stiles, 77 Ill.App. 200; Wendt v. Voegel, 87 Wis. 462; Pope v. King, 16 L. R. A. (N. S.) 489.)

The plaintiff having been guilty of a breach of the special contract, and having attempted to abandon it without completing the work, cannot disregard it and recover the reasonable value of the work performed. (Barkstrom v. Ryan, 122 N.Y.S. 878; Clark v. Smith, 14 Johns. 326; Carpenter v. Gray, 12 R. I. 306; Ginther v. Schultz, 40 O. St. 104; Kennelly v. Walker, 107 N.Y.S. 95; Marshall v. Jones, 11 Me. 54; Maxwell v. Moore, 50 So. 882; Oakley v. Morton, 11 N.Y. 25; Tinley v. Van West, 104 N.Y.S. 3.) The law will not imply a contract to build a sidewalk in a manner forbidden by the city ordinances. (Cundell v. Dawson, 4 Man. G. & S. 375; U. S. v. Dietrich, 126 F. 671; Church v. Ga. Light Co., 6 A. & E., 864; Brady v. Mayor &c., 16 How. Pr. 432; Cope v. Rowlands, 2 M & W. 149; People v. Metz, 24 L. R. A. (N. S.) 201; Yount v. Denning, 35 P. 207.) The finding of substantial compliance with the contract without a finding of the defects and the reasonable damage caused thereby is insufficient. (Manitowoc &c. Co. v. Glue Co., 97 N.W. 515; Norton v. U. S. &c Co., 85 N.Y.S. 886; Spence v. Ham, 163 N.Y. 220.) The finding as to the reasonable value of the sidewalk was based on an improper measure of damages. (Hayward v. Leonard, 7 Pick. 181; Bell v. Fox, 123 N.Y.S. 310.) The finding that defendant had accepted the work is contrary to the evidence, since such acceptance could not be inferred from the fact that the defendant permitted the sidewalk to remain and made use of it without objection. (Gwinnup v. Shies, 161 Ind. 500; Hahl v. Deutsch, 94 S.W. 443; Halleck v. Bresnahen, 3 Wyo. 73; Land Co. v. Brewer, 51 So. 559; Marchland v. Perrin, 124 N.W. 1112; Church v. Cement Co., 66 Md. 598.) The finding that the sidewalk had not been condemned by the city engineer is against the evidence, the city engineer having testified that he refused to approve the sidewalk because it did not comply with the city specifications; that he condemned a part of the material and ordered the work to stop two or three different times for the reason that the ingredients were not being properly mixed.

Marion A. Kline, for defendant in error.

No objection was raised to the petition in the Justice Court and it could not, therefore, be objected to on the trial in the District Court. (Comp. Stat. 1910, Sec. 5264.) Pleadings in justice courts are to be construed liberally. (Hudson Coal Co. v. Hauf, 109 P. 21; Everett v. Irwin, (Ind.) 94 N.E. 352; Brown v. Thompson, (Ind.) 90 N.E. 631; Costello v. Ten Eyck, (Mich.) 49 N.W. 153; 22 Ency. Pl. & Pr. 1365.) By filing an answer the defendant was estopped to deny that he did not know the nature of the action, or that he was unable to make an intelligent defense. (Sinkling v. Ill. Cent. R. Co., (S. D.) 74 N.W. 1029.) The objection to the petition having been made during the trial in the District Court by objecting to the introduction of any evidence, the most liberal construction will be given to the petition in order to sustain it. (1 Bates Pl. & Pr. 458; 459; Wilkins v. Stidger, 22 Cal. 232; Hudson Coal Co. v. Hauf, supra.)

There is no authority under the code of procedure in this state for a non-suit against the consent of the plaintiff; but if a non-suit is ever authorized any error in refusing it was cured by the evidence subsequently introduced. (Comp. Stat. 1910, Sec. 4610; Byrd v. Blessing, 11 O. St. 364; Stockstill v. R. Co., 24 O. St. 83; N. P. R. Co. v. Mares, 123 U.S. 713; Hopkins v. Clark, 158 N.Y. 304, 53 N.E. 27; Iron Co. v. Brown, 171 N.Y. 488, 64 N.E. 194; Lynch v. Johnson, 109 Mich. 640, 67 N.W. 908; Chicago &c. R. Co. v. Wedel, 144 Ill. 9, 32 N.E. 547; Chamberlain v. Woodin, (Ida.) 23 P. 178; Runkle v. Burnham, 153 U.S. 222; Ry. Co. v. Snyder, 152 U.S. 683; Denver &c. R. Co. v. Smock, (Colo.) 48 P. 681; Gilmer v. Inv. Co., (Wash.) 79 P. 1103; Sigafus v. Porter, 179 U.S. 116; Denver &c. R. Co. v. Robinson, (Colo.) 40 P. 840; Ry. Co. v. Jones, (Md.) 50 A. 423; Keener v. Baker, 93 F. 377; Ratliff v. Ratliff, 131 N.C. 425, 63 L. R. A. 963; United Rys. &c. v. State (Md.), 49 A. 923; Lowe v. Ry. Co. (Cal.), 98 P. 675; Burnham v. R. Co. (N. H.), 45 A. 564; Thompson v. Avery (Utah), 39 P. 831; Horn v. Reitler (Colo.), 25 P. 502; Taylor v. Taylor (Or.), 103 P. 537; Yergy v. Helena &c. Co. (Mont.), 102 P. 316; Elmensorf v. Golden (Wash.), 80 P. 266; Weil v. Nevitt (Colo.), 31 P. 488; Bopp v. Electric &c. Co. (N. Y.), 69 N.E. 122; Bostwick v. Willett (N. J.), 60 A. 398; Esler v. Ry. Co. (N. J.), 58 A. 113; Dimuria v. Transfer Co. (Wash.), 97 P. 657; Ryan v. Lambert (Wash.), 96 P. 232; Curtin v. Lumber Co. (Wash.), 91 P. 956; Trickey v. Clark, 50 Ore. 516, 93 P. 457; Ry. Co. v. Henderson (Colo.), 13 P. 910; Barton v. Kane, 17 Wis. 38; Ingalls v. Oberg (Minn.), 72 N.W. 841; Carey v. Packet Co. (N. J.), 60 A. 180; Jones v. Ry. Co., 46 N.Y.S. 321; Ayres v. Ins. Co. (Ia.), 85 Am. Dec. 559; Weinhard v. Bank (Or.), 68 P. 806.)

The court found that the defendant had accepted the sidewalk, "and is now enjoying the use and benefits of the same." That finding was based upon competent evidence, and is, therefore, binding upon the appellate court. The court further found that the contract did not require an approval of the work by the city engineer. That finding was also supported by the evidence. The city specifications were not before the trial court, and, therefore, the finding as to the necessity for approval by the engineer must be accepted as final. All the evidence with reference to the grading of the sidewalk area is outside the issues in this case. But the court found that, although a part of the sidewalk was not upon the established grade, neither the engineer nor the defendant offered any objection to its being constructed on the grade on which it was constructed. Further, it was shown by the evidence that temporary grades were allowed by the engineer upon demand of the owner.

The plaintiff was entitled to recover the contract price notwithstanding that he had sued for the reasonable value of the work and materials. (Hecht v. Stanton, 6 Wyo. 84, 43 P. 508.) There was sufficient competent evidence to support every finding of fact, and that being true the appellate court will not disturb the findings. (Slothower v. Hunter, 15 Wyo. 189, 88 P. 36; Riordan v. Horton, 16 Wyo. 363, 94 P. 448; Schiller v. Blyth &c. Co., 15 Wyo....