Ewing v. Sargent
| Decision Date | 26 February 1971 |
| Docket Number | No. 6304,6304 |
| Citation | 87 Nev. 74,482 P.2d 819 |
| Parties | J. A. EWING, doing business as Ewing Manufacturing Co., Appellant, v. George SARGENT, Sargent Showcase and Fixture Co., Inc., Respondents. |
| Court | Nevada Supreme Court |
Gray, Horton & Hill, Reno, for appellant.
Goldwater, Hill, Mortimer & Rose, Reno, for respondents.
Appellant J. A. Ewing, a Las Vegas manufacturer of gaming accessories, seeks reversal of a judgment entered after a nonjury trial, denying him recovery of $13,276.12 allegedly due from respondent Sargent Showcase and Fixture Co., Inc., a Reno-based manufacturer of gaming furniture and fixtures, and from respondent George Sargent, the corporation's president. We affirm the judgment, having determined the lower court did not err as Ewing contends, either inr eaching a decision for respondents despite the testimony of Ewing's witness Donahue, or in declining to consider the theory of quantum meruit which Ewing first raised by post-trial brief.
Since the 'very early fifties,' to complete orders generated in the course of its business, the Sargent company has purchased from Ewing such accessories as trays, locking covers for 'twenty-one' tables, 'crap racks,' and similar items, paying for them at prices discounted 25% from those stated in Ewing's catalogs. In early July, 1967, because a furniture manufacturer with design expertise was necessary to the transaction, Ewing telephoned Sargent to involve him in seeking to outfit a new casino at El Conquistador Hotel, San Juan, Puerto Rico. Each at his own expense, they flew there together, in company with Ewing's friend Donahue, the only witness to testify at the trial other than Ewing and Sargent. Hotel representatives supplied them with a copy of a proposal from B. C. Wills & Company, a competitor of the Sargent company, which offered a list of furniture, fixtures, and accessories to outfit the casino at a price of some $32,000. After tentative discussions with hotel representatives concerning design of furniture and fixtures to be manufactured by Sargent, he returned to Reno to begin design work, while Ewing sought other outlets for his accessories in neighboring islands.
The hotel company ultimately approved furniture designs prepared by Sargent; then, it sent the Sargent company a purchase order for some $64,000 in merchandise, couched in the same general terms as the proposal of B. C. Wills & Company, encompassing accessories apparently to be obtained by Sargent from Ewing in the course of filling the order. The parties proceeded accordingly: the Sargent company issued purchase orders to Ewing; Ewing supplied accessories for use with the Sargent company's furniture; the hotel company made payments to the Sargent company, which made remittances to Ewing. When disputes arose concerning timeliness and quality of Ewing's deliveries, Ewing supplied some items directly to the hotel, and at Sargent's request the hotel company made final payment for accessories directly to Ewing.
Ewing thereafter commenced this action, to obtain something beyond payment for his own goods; how much more, and on what basis, has never been made clear. Ewing alleged in his Complaint that Sargent 'agreed to pay twenty-five percent of the total price' of all goods and services supplied to the hotel; yet, he seemed to say at pre-trial deposition that his agreed compensation was to have been a percentage of the price proposed by B. C. Wills & Company; at trial, he testified to still another formula. While the trial judge's Opinion reflects that he was especially impressed by these apparent inconsistencies, Ewing's testimony also vacillated on other matters, and was at odds with aspects of the parties' course of dealing. Sargent's testimony was clear and unequivocal: he had only agreed to pay Ewing the price of goods obtained from him; if Ewing had ever asked for more, he had not agreed to pay it. The trial court found 'that there was no meeting of the minds between the parties, and that the plaintiff has failed to prove his case by a preponderance of the evidence.'
Appellant contends 'that the lower court committed error in applying the preponderance of evidence rule where Appellant's interpretation of the oral contract between Appellant and Respondent was supported by the testimony of a witness, Mr. Donahue, who was not a party to the contract.' In regard to this claim of error, appellant quotes testimony by Donahue that in Puerto Rico he heard Ewing indicate to Sargent a desire that Sargent use B. C. Wills & Company's price proposal as the basis of computing his own, by adding an amount to compensate Ewing. 1 Ewing apparently thinks the trial court was constrained to rule in his fabor, because his position was thus 'supported' by a disinterested witness. We disagree, for several reasons.
First, Donahue's testimony does not truly 'support' the position taken by Ewing at trial; for at trial Ewing asserted that the Wills price proposal was not the basis for computing Ewing's compensation and arriving at Sargent's bid, although in a pretrial deposition he had testified that it was. 2
Second, as was proper, the trial judge weighed Donahue's testimony in light of the fact that Ewing's counsel elicited no testimony from Donahue regarding a response to Ewing's suggestions, stating in his Opinion: 'Peculiarly enough, there is no testimony as to any response by Mr. Sargent.' In Spencer v. Las Vegas Sun, Inc., 84 Nev. 279, 439 P.2d 473 (1968), where a plaintiff failed to produce certain documentary evidence that might have corroborated his own testimony, we held that this omission raised the presumption of NRS 52.070(5) 'that evidence willfully suppressed would be adverse if produced,' and could be relied upon to sustain a judgment adverse to the plaintiff even though the plaintiff's testimony was not directly controverted. Thus viewed, if Donahue's testimony aids anyone, it supports respondent Sargent, not appellant Ewing.
Third, and most important, under settled legal principles, Donahue's testimony would not necessitate a judgment in favor of Ewing, even if it constituted an unequivocal assertion that Sargent had assented to Ewing's ultimate version of the supposed agreement. Precedents of this court establish beyond cavil that it is the prerogative of the trier of fact to evaluate the credibility of any witness's testimony, and to reject it, at least where the testimony of the witness is contradicted as in the instant case, is impeached, is inherently incredible, or conflicts with other evidence or inferences arising from evidence. For example, see: Roberti v. Anderson, 27 Nev. 396, 76 P. 30 (1904), upholding a judgment against a plaintiff even though his contentions were supported by witnesses not parties to the action, and stating that 'the testimony of a larger number of witnesses to a different state of facts is no ground for reversal' (27 Nev., at 403, 76 P. at 32); Havas v. Alger, 85 Nev. 627, 461 P.2d 857 (1969), and Williams v. Lamb, 77 Nev. 233, 361 P.2d 946 (1961), upholding judgments in favor of defendants on conflicting evidence, even though defendants had the affirmative burden of proving fraud; In re Duffill's Estate, 57 Nev. 224, 61 P.2d 985 (1936), holding that the trier of fact is not necessarily constrained to accept uncontradicted testimony, but may consider any 'inherent improbabilities of the statements of witnesses' (57 Nev., at 231, 61 P.2d, at 987); In re Golding's Estate, 5. Nev. 201, 89 P.2d 1049 (1939), holding that uncontradicted testimony may be disbelieved, when inconsistent with other circumstances established by the evidence; and Spencer v. Las Vegas Sun, Inc., 84 Nev. 279, 439 P.2d 473 (1968), previously discussed in this Opinion, recognizing that while it may not be disregarded arbitrarily, even uncontroverted testimony may be rejected in favor of a legitimate inference or presumption arising from evidence of record. On the general proposition that credibility and weight of testimony is for the trier of facts, see also: Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Berto v. Wilson, 74 Nev. 128, 324 P.2d 843 (1958).
In accord with our holdings, Dean Wigmore, in a section title 'General Principle; One Witness may Suffice; An...
To continue reading
Request your trial
-
Summa Corp. v. Greenspun
...and, therefore, pay the usual deference to the trial judge whose task it is to determine credibility and weight. Ewing v. Sargent, 87 Nev. 74, 482 P.2d 819 (1971); Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954). The trial testimony of the mentioned witnesses clearly and definitely est......
-
El Dorado Hotel, Inc. v. Brown
...the prerogative of the trier of fact to evaluate the credibility of the witnesses and to decide whom to believe. Ewing v. Sargent, 87 Nev. 74, 78, 482 P.2d 819, 821-822 (1971). On appeal we assume that the jury believed all the evidence favorable to the prevailing party and drew from the ev......
-
Chanay v. Chittenden
...be no implied contract where there is an express contract between the parties in reference to the same subject matter. Ewing v. Sargent, 87 Nev. 74, 482 P.2d 819 (1971); Fox v. Cities Service Oil Co., 201 Okl. 17, 200 P.2d 398 (1948); Wilson v. Frederick R. Ross Inv. Co., 116 Colo. 249, 180......
-
Kerr v. Mills
...42, 409 P.2d 976 (1966). Collecting a number of Nevada authorities in support of the proposition, we recently said in Ewing v. Sargent, 87 Nev. ---, 482 P.2d 819 (1971): 'Precedents of this court establish beyond cavil that it is the prerogative of the trier of fact to evaluate the credibil......