Finley v. Pew

• Decision Date: 14 March 1922
• Docket Number: 1011,1013
• Citation: 205 P. 310,28 Wyo. 342
• Parties: FINLEY v. PEW
• Court: Wyoming Supreme Court

205 P. 310

28 Wyo. 342

FINLEY v. PEW

Nos. 1011, 1013

Supreme Court of Wyoming

March 14, 1922

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Rehearing Denied May 5, 1922, Reported at: 28 Wyo. 342 at 369.

APPEAL from and Error to the District Court, Fremont County; HON. RALPH KIMBALL, Judge.

Action by C. H. Finley against George H. Pew to recover a payment alleged to be due on account for labor and material furnished and money advanced in connection with a building contract. There was a judgment for plaintiff. Defendant appeals and plaintiff brings error. The material facts are stated in the opinion.

Judgment modified and affirmed.

George F. Dobler and E. H. Fourt, for plaintiff in error and respondent.

This action involves a written contract made between the parties for the construction of a building; the trial court erred in applying the facts to the terms of the written contract, which is in evidence. Various items of credit were improperly denied, all of which are specified in the general statement set forth in our brief and which would have increased the judgment; in the construction of contracts if it appear that one party is prevented from carrying out or performing his part of the contract by the other party, he shall not be liable for the loss incurred. (McLane v. Delayer, 56 N.Y. 619; Grey v. Wells, 50 P. 23 (Cal.); McConnell v. Water Co., 85 P. 229 (Calif.); Gubbins v. Lautenschlager, 74 F. 160.) Defendant directed the work and knew that cement was not being used. Refusal of the owner to accept the work for imperfections, the work having been directed by defendant is no defense against a suit for the labor cost. There having been substantial performance recovery should be allowed even without proof of complete fulfillment. (St. Chas. v. Stookey, 154 F. 772.) The law will imply a promise to pay what the services are worth. (Sadue v. Semour & Wood, 24 Wendell, 60; Omaha Co. v. City, 156 F. 922; City v. Fitzgerald, 114 F. 547; Connell v. Hagins, 150 P. 769.) A party is not permitted to impeach his own witness or evidence. (Cox v. Eayers, 55 Vt. 24; Arnold v. State (Wyo.) 40 P. 967.) No foundation was made for impeachment of Finley's account books. (98 Ency. Evid. 98; Dear v. Tracey, 1 Wyo. 389; 17 Cyc. 464, 129 F. 257.) The introduction of a witness or books of account is an admission of credibility. (7 Ency. Evid. 25. Bosler v. Coble, 84 P. 895; Blanchard v. Bank, 75 F. 249; Mattock v. Lyman, 18 Vt. 98.)

George F. Dobler and E. H. Fourt, for respondent in the appeal by George H. Pew.

The specifications of error filed by appellant, numbered 1 to 57 inclusive, are without merit for the specific reasons urged against each of them in our written brief; the court will observe that there is no reply to plaintiff's plea of payment which is therefore denied. (Hubler v. Pullen, 9 Ind. 275; 68 Am. Dec. 620; Farmers Bank v. Sherman, 53 N.Y. 69.) Evidence of payment for the goods or other articles of value is admissible under an allegation of payment. (Crandall v. Bradley, 11 N.Y. 144; Roberts v. Baddy, 2 Penrose, 63 (Penn.); Cole v. Ross, 9 Monroe, 395.) Payment in legal contemplation is the discharge of an obligation by the delivery of money or its equivalent. (6 Words and Phrases, 5247; Cranston v. Company, 128 P. 427.) A defense even though imperfectly stated by answer is sufficient to sustain a judgment if not objected to. (Epinger v. Kendrick, 46 P. 613; Chaplin v. Carruthers, (Wyo.) 129 P. 434.) A ruling of the trial court denying a motion to dissolve an attachment if based on evidence will not be disturbed. (Bank v. Swan, 3 Wyo. 356.) An objection to a pleading for uncertainty may be waived by failure to move for a more specific statement. (Williams v. U. P. R. R. Co., 124 P. 505.) Failure to move for a more specific statement of cause of action constitutes a waiver. (C. S. 4383. Cone v. Ivinson, 33 P. 31; 4 Wyo. 203; U. S. F. & G. Co. v. Parker, 121 P. 521; Irrigation Co. v. Ditch Co., 31 P. 43; Becker v. Hopper, 138 P. 179; Metcalf Co. v. Gilbert, 116 P. 1017; Phelan v. Brick Co., 188 P. 354.) In the absence of exception an objection is lost. (8 Ency. P. & P. 157. Boburg v. Brahl, 3 Wyo. 325; Lambkin v. Sterling, 1 Idaho 120; Newport Co. v. Pace, 158 U.S. 56; Atchison v. Arnold, 72 P. 190; 11 Wyo. 357; Synd. Co. v. Bradley, 6 Wyo. 171; State v. District Court, 13 Wyo. 1; Freeburg v. Lamoreaux, 85 P. 1054.) No exception was taken to the order giving defendant a money judgment; the exception referred to in specification 38 refers only to the order sustaining the attachment, and nothing more.

A. H. Maxwell and H. J. Christy, for appellant.

After carefully reading and considering respondent's brief and examining such of the authorities therein cited as we have access to, we feel that it is possible that he has failed to grasp the import of the errors assigned in our specifications of error and the points we endeavor to make in our brief. We therefore request permission to recapitulate certain matters which perhaps are obscurely stated; the summarization of our specifications of error as set forth in respondent's brief purporting to give their substance, is apparently incorrect and we therefore take the liberty of reviewing said specifications in general, many of them however, relating to the admission or rejection of evidence at the trial; specification numbered 52 relates to the deposition of Henry Tietjen admitted over the objection of defendant on the ground of a defective notice of the taking thereof. The court erred in overruling defendant's objection to the admission of this deposition, to which exception was duly noted. The appeal is from the judgment and an appealable order; the case is before the Supreme Court upon the entire record. Neither the contract nor pretended account annexed to the petition was a part of the pleading. (Insurance Company v. Kahn, 4 Wyo. 364.) The defect was not cured by amendment since a different contract was attached to the original petition. Plaintiff's reply was insufficient to support the evidence offered under it. (City of Rawlins v. Jungquist, 16 Wyo. 432.) The findings of fact do not sustain the attachment proceedings. The affidavit in attachment was insufficient in not stating that the claim was just. (8848 C. S.)

A. H. Maxwell and H. J. Christy, for defendant in error.

Upon the ground that the proceedings in error are regarded under the code as a new suit (2 Cyc. 510) commenced after the initiation of a direct appeal by defendant, appellant has filed a plea in abatement; even if the appeal be regarded as a new suit, it is prior in time to the proceedings in error brought by the plaintiff in error. If final judgment in the appeal would support a plea of res judicata in the subsequent suit, the suits are identical and the second suit should be abated. 1 C. J. 66; 1 Cyc. 28, and the matters and things adjudicated in the first suit cannot be re-examined in the second. (23 Cyc. 1215.) The record shows the questions in issue in both suits to be identical and the petition in error should therefore be abated. The errors set forth in the petition in error may be summarzed in two general groups, 1 alleged errors in disallowing items claimed by plaintiff; 2, alleged errors in the allowance of credits claimed by plaintiff. A party alleging a contract carries the burden of proving it where it is denied. (9 Cyc. 757.) The same burden follows one alleging performance. If our plea in abatement be overruled and the court desires to consider a cause on its merits we contend that no prejudicial error was committed by the trial court regarding the matters presented by plaintiff's motion for new trial. A strange theory advanced in the brief of plaintiff in error is that the cross examination by defendant with reference to books of account proved plaintiff's case. But we believe the rule to be well settled that a witness upon cross examination still belongs to the party who originally called him. (Greenleaf, 14th Ed. Vol. 1, pg. 540.) Whatever was shown by the books was plaintiff's testimony and not defendant's. (Jones Ev. Vol. 5, pg. 114.) Plaintiff tries to recover upon proof of his case by a preponderance of the evidence as to the existence of the contract; his performance thereof and the value thereof where the matter was in addition to the cost of labor and material included in the lump sum of $ 18,200.00. We submit that the above propositions were not established by the exhibits referred to; plaintiff failed to prove what he attempted to plead and failed to plead what he attempted to prove. Exceptions taken to a ruling at the trial are presented by specifications of error in defendant's direct appeal and discussed in the brief. We believe these assignments should be considered with the same effect as if assigned as cross errors, and ask that each of said errors be considered separately in connection with the portions of the evidence indicated by this brief. The case being one governed so largely by the facts given at the trial and the record being so voluminous, it is difficult indeed to discuss the record in greater detail. Upon the whole, we believe it is self evident from the record that plaintiff failed to make even a prima facie case. If the court should be of the opinion that there are no vital defects in plaintiff's pleading, and that the errors existing could not be cured, a new trial might be proper. But we believe that upon an appeal from a judgment in favor of appellant below, where the appellate court decides the appellant has no cause of action and cannot succeed in another trial, it will not order a new trial but either render a proper judgment or order it rendered in the trial court. (3 Cyc. 452.)

E. H Fourt and George F. Dobler, on motion to strike...