Evans v. Glencross

• Decision Date: 26 January 1894
• Docket Number: Civil 383
• Parties: JOHN M. EVANS, Defendant and Appellant, v. FRANK GLENCROSS et al., Plaintiffs and Appellees [*]
• Court: Arizona Supreme Court

36 P. 212

4 Ariz. 222

JOHN M. EVANS, Defendant and Appellant, v. FRANK GLENCROSS et al., Plaintiffs and Appellees ^[*]

Civil No. 383

Supreme Court of Arizona

January 26, 1894

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge.

Affirmed.

Alexander & Stilwell, and Kibbey & Israel, for Appellant.

The contract in this case provided that final payment was not to be made until all bills for labor and material were paid and furnished receipted to the owner, and the house delivered free and clear from all claims, liens, etc., of every description, immediately after the completion of the work. This condition has never been complied with.

The plaintiffs had no cause of action against the defendant until they had complied with this condition. People v Glenn, 70 Ill. 232; 1 Chitty on Pleading, pp. 321-323; Moore v. Campbell, 111 Ind. 343, 12 N.E. 495; Dey v. Dox, 9 Wend. 129, 24 Am. Dec. 137; Sargent v. Adams, 3 Gray, 72, 63 Am. Dec. 718; Richardson v. Maine Ins. Co., 46 Me. 394, 74 Am Dec. 459; Cunningham v. Morrell, 10 Johns. 202; Butler v. Tucker, 24 Wend. 447.

"Where the time for the payment of money is to happen after the performance of that which is the consideration, no action accrues for the money until the consideration is performed." Crane v. Knubell, 43 How. Pr. 389; Barton v. Herman, 11 Abb. Pr. N. S. 378; Grant v. Johnson, 5 N.Y. 274; Smith v. Brady, 17 N.Y. 175; Erickson v. Brandt, 53 Minn. 10, 55 N.W. 62.

C. F. Ainsworth, for Appellees.

It will be seen from the motion for a new trial and the causes there set out that the appellant did not rely in the court below upon the necessity of proving this particular allegation as a ground for setting aside the verdict. It is not mentioned in their motion for arrest of judgment, nor claimed that it was necessary under the pleadings for the plaintiffs to prove this particular allegation, nor that there was not sufficient evidence to sustain it, if it had been denied by the answer, and it is too late now to raise a question in this court for the first time, it being admitted by the answer of the appellant in the court below. Tiernan v. His Creditors, 62 Cal. 286; Estate of McCarty, 58 Cal. 335; Wardle v. Cummings, 86 Mich. 395, 49 N.W. 538; Watkin v. Clifton H. L. and Co., 91 Tenn. 683, 20 S.W. 246; Stepp v. National Life etc. Assn., 37 S.C. 417, 16 S.E. 134; Waterhouse v. Black, 87 Iowa 317, 54 N.W. 342.

The bill of exceptions does not contain all of the evidence given on the trial of this cause. It merely purports to take out of the testimony offered on the trial certain disconnected statements of three witnesses for the purpose of attempting to show that no receipted bill was furnished by plaintiffs to defendant Evans, and that therefore, as claimed by appellant, this action could not be maintained.

There was no issue for the court to try on this particular question, for the reason that the performance of this condition was admitted by appellant's answer, whatever this evidence, disconnected as it is from the other testimony in the case, may tend to show. The testimony upon which this judgment was rendered is not all before the court, and this court is bound to presume that the testimony as offered in the court below, if all presented in the bill of exceptions, would clearly establish the plaintiffs' right to recover, and this the court will presume, although the testimony set out by the appellant in the bill of exceptions tends to disprove the plaintiffs' right to recover. The presumption of law is, that other testimony was given on the trial which destroyed the force and effect of that preserved. Edwards v. Smith, 48 Wis. 254, 3 N.W. 758; McCormick v. Ketchum, 48 Wis. 643, 4 N.W. 798; Jones v. Foster, 67 Wis. 296, 30 N.W. 697; Ford v. Holton, 5 Cal. 320; Todd v. Winants, 36 Cal. 130; Paine v. Smith, 32 Wis. 339; Woodlock v. Combs, 49 Wis. 659, 6 N.W. 362; McNelly v. Holliday, 105 Ind. 324, 4 N.E. 894; Crystal v. City of Des Moines, 65 Iowa 502, 22 N.W. 646; Collins v. Collins, 100 Ind. 266; Evansville etc. Co. v. Kendall, 4 Ind.App. 460, 30 N.E. 1110; City v. Babcock, 3 Wall. 240; Hoagland v. Cole, 18 Colo. 426, 33 P. 151.

Hawkins, J. Sloan, J., and Rouse, J., concur.

OPINION

The facts are stated in the opinion.

HAWKINS, J.--

This was an action commenced in the lower court to recover of the appellant the sum of $ 837. The complaint set out two causes of action: First, for $ 444, balance alleged to be due on a building contract set out in the complaint; second, for $ 393, for extra materials and labor alleged to have been furnished by appellees to appellant, and for which it is alleged appellant agreed to pay appellees reasonable prices and that a reasonable price for the same was $ 393. An itemized account for such materials is set out in detail in the complaint. The appellees, in their cause of action on the building contract, allege a compliance with all the conditions and terms of said contract, so far as the same was not afterwards modified. A copy of the contract is attached to the complaint, and one of the specifications therein is "And it is further agreed by said Frank Glencross, William Brotherton, and H. W. Ryder, the parties of the second part, that they will pay all bills for labor and materials, and deliver the building clear and free from all claims, liens, etc., of every description, immediately after the completion of the work, and furnish all bills receipted before the last payment will be made; and the parties of the second part further agree to guaranty the full payment of claims that may be presented and approved within six months after the building may be completed." Appellant seems to rely upon the following of said conditions: "And furnish all bills receipted before the last payment may be made." The answer is a special denial, admitting and denying certain allegations of the complaint, and there is no special denial as to the performance of this particular condition. The jury rendered a verdict for $ 685 for appellees, and judgment was rendered thereon against appellant. Appellant moved for a new trial, and set out the...