Halleck v. Bresnahen

• Decision Date: 22 November 1883
• Citation: 2 P. 537,3 Wyo. 73
• Parties: HALLECK et al. v. BRESNAHEN
• Court: Wyoming Supreme Court

2 P. 537

3 Wyo. 73

HALLECK et al. v. BRESNAHEN

Supreme Court of Wyoming

November 22, 1883

Error from district court, Albany county.

Action by one Bresnahen against Halleck Bros. on a bond given for the performance of a building contract made by Dawson &amp Hawes. Judgment for plaintiff, and defendants bring error. Affirmed.

Judgment affirmed.

C. N Potter and Decker & Yonley, for plaintiffs in error.

Corlett & Rosendale, for defendant in error.

PARKS J.

OPINION

PARKS, J.

In this case the defendant in error filed his motion to dismiss the writ of error, and supported it by a number of points, arguments, and authorities. The third point made and insisted on is that the plaintiff in error did not file with the clerk of this court printed abstracts of the record at the time, in the manner, and in the form required by law. The statute of this territory provides that the rules of practice of this court shall be as binding upon the several courts, and the parties practicing and having business therein, as though the same were enactments of the legislative authority of this territory. One of the rules of this court requires "that the plaintiff in error shall deliver to the clerk 14 printed copies of an abstract of so much of the record as is necessary for a full understanding of all the questions presented to this court for decision," and "if the defendant in error shall deem the abstract of the appellant or plaintiff in error imperfect, he may within twenty days after the delivery of said copies to the clerk deliver to the latter 14 printed copies of such further or additional abstracts as he shall deem necessary to a full understanding of the questions presented to this court for decision."

The abstract here made imperative is not the transcript, which is a full copy of the record, but an epitome, abridgment, or compendium, in which is condensed the substance of the record, so as to enable the court, in language of a learned judge, "to extract the controversy in the case from the mass of matter unconnected with it, without performing hours of labor which ought to have been done by the counsel for appellant, under the rule which is so reasonable in itself, and so necessary and indeed indispensable to the progress of the court in the discharge of its duty." Perhaps there never was a case in this court that more clearly illustrates the utility of this rule and the necessity of its enforcement than the present one. The transcript consists of 442 pages, and the errors assigned were originally 70. No abstract has been filed, and as the case stands the court is obliged to examine this entire record.

The supreme courts of Indiana, Illinois, Missouri, California, and other states often dismiss cases for similar violations of their rules. In the Buckley Cases, in 60 Ill. 252, the court say, among other things: "Appellant in each case has failed to prepare and file an abstract of the record, but there has been filed in each case a printed index to the transcript. We presume the attorney was aware of the rules of the court, and has intentionally disregarded them. As the cases have not been prepared as required by the rule, we decline to consider them, and affirm the judgments." And so we should be obliged to dispose of this case had it not been continued with the express understanding that it should be heard and decided upon its merits.

The case is fairly stated by both parties, and is substantially as follows: The defendant in error brought an action against the plaintiffs in error upon a bond given by them to the defendant in error in the sum of $ 5,000, conditioned that if the firm of Dawson & Hawes, who were the principals in said bond, and who had made a contract with the defendant in error to erect, build, and complete a two-story brick building for him, should well and truly perform said contract in all things, according to the specifications, the bond should be void; otherwise in force. The petition in the case alleged the making of said building contract, and the bond to secure the performance of the contract, and that said Dawson & Hawes proceeded to erect said building, but failed to comply with the terms of the contract under which the building was to be erected, in that they built the walls of the cellar of said building of half-burned casing brick, and laid up the walls of the building with bank-sand mortar, whereas, by the terms of the contract, said cellar walls were to be built of arch hard-burned brick, and the walls were to be laid up with fresh lime and sharp-sand mortar. The petition further alleged that in consequence of the failure of said Dawson & Hawes to erect said building in the manner required by their contract in the particulars before stated, it fell down, and became entirely ruined, to the damage of the plaintiff $ 5,000, for which he asks judgment. In due time Halleck Bros. made answer in the case, setting up six defenses. Dawson & Hawes were not served with process, and did not make any appearance in the case.

The defendants Halleck Bros. made, in substance, the following defenses:

(1) They admitted the contract between Dawson & Hawes and the plaintiff in the action, Mr. Bresnahen, for the construction of the building, and also admitted the execution of the bond conditioned for the performance of the contract; they further admitted the allegations of the petition in respect to the character of the brick which were to be used in the construction of the cellar walls and the character of the mortar to be used in laying up the walls, as fixed by the terms of the building contract; they also admitted that Dawson & Hawes did construct the said building, but deny that they failed to comply with the terms of said building contract, in the respect set out in the petition; they admit that the building fell down, but deny that it fell in consequence of the failure of Dawson & Hawes to comply with the terms of their contract; they deny that any furniture or other property of the plaintiff was injured by the fall of the building.

(2) The second defense set up by the defendants is, in substance, that the plaintiff, when the building was in course of construction, made the payments therefor as provided by the contract, and when the building was completed that he accepted the same as completed under the contract, and remained in the same until it fell, without notice to Halleck Bros. of any objection on account of any supposed failure on the part of Dawson & Hawes to perform their contract. It is further alleged, in this defense, that, by the construction contract, disputes on account of imperfect construction of the building were to be settled by arbitration; wherefore, it is further alleged that the plaintiff waived his right to a strict performance of the contract, and by his acquiescence deprived the defendants Halleck Bros. of their indemnity as sureties, and of their opportunity to have any disagreement between Bresnahen and Dawson & Hawes adjusted by arbitration.

(3) The third defense is substantially the same as the second, except that it is alleged that the plaintiff paid the several sums to be paid by him under the contract, including the last payment, without insisting that said building was not completed according to the contract, although at the time of making the last payment, it is alleged, the plaintiff well knew of the defects in the building of which he complains in his petition, from which it is concluded that plaintiff accepted the building, and waived strict performance, etc.

(4) The fourth defense alleges that after the completion of the building, differences arose between Dawson & Hawes and the plaintiff as to the manner in which said contract had been performed, which were submitted to arbitration, pursuant to the contract, an award made thereon, and performed, from which it is concluded and averred that there was an accord and satisfaction as to all such matters of difference in respect to the construction of said building.

(5) The fifth defense is, in substance, that at all times from the completion of the building until shortly before the commencement of this action the said Dawson & Hawes each were solvent, but since, and before the bringing of this action, be came insolvent; wherefore the defendants say that by virtue of the several acts of the plaintiff, as aforesaid, the defendants were led to suppose that plaintiff had waived or settled his objections to the want of strict performance of the building contract, and that Halleck Bros. were thereby prevented from seeking their indemnity against said Dawson & Hawes before the accruing of their several insolvency.

(6) Halleck Bros., as a sixth defense, aver that after the making of said building contract, and during the construction of the building, the plaintiff, without the consent of Halleck Bros., agreed with Dawson & Hawes that the work of the construction of said building should be otherwise than as prescribed by the specifications of the contract, and that the building should not have been constructed until after the tenth of November, 1875, and that the building was constructed in a manner otherwise than according to the contract, and was not completed until after November 10, 1875, without the consent of the defendants Halleck Bros.

Upon the issues thus formed, the case came to trial in Albany county, where it had been taken by change of venue by Halleck Bros., and was tried by the court, without a jury, on the thirtieth and thirty-first days of March and the first and second days of April, 1881. The plaintiff, to maintain the issues on his part, put in evidence the bond sued on and said building contract, and they were received without objection. The defendants Halleck Bros. then produced certain...