Hawley v. Corey

• Decision Date: 16 June 1893
• Court: Utah Supreme Court
• Parties: H. W. HAWLEY, RESPONDENT, v. WARREN W. COREY AND OTHERS, APPELLANTS

33 P. 695

9 Utah 175

H. W. HAWLEY, RESPONDENT, v. WARREN W. COREY AND OTHERS, APPELLANTS

Supreme Court of Utah

June 16, 1893

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial, Hon. John W Blackburn, judge. The opinion states the facts except the following:

Section 3361, 2 Comp. Laws of 1888, provides: "In charging the jury the court may state to them all matters of law it thinks necessary for their information in giving their verdict, and if it state the testimony of the case, it must inform the jury that they are the exclusive judges of all questions of fact." In this case the jury were charged that they were the sole judges of the credibility of the witnesses, of the weight of the evidence, and of the facts.

The record states the testimony of witness Stiffler as follows Paper was shown to the witness marked Exhibit 1; counsel asked witness if he had seen it before. Witness: "I have; it is a memorandum of prices. I wrote that paper. Mr Corey told me that Mr. Hawley wanted a memorandum of prices. Mr. Hawley and Mr. Corey were present at the time." Question: "Go on and state how you came to write it, and under what circumstances?" Objected to as incompetent and immaterial. Objection sustained; exception by counsel for defendants. Question: "What, if anything, did Mr. Corey say to you there about signing the name of Corey Bros. & Co. to that paper?" Objected to as immaterial and incompetent; objection sustained; exception by counsel for defense. The court stated that the reason why the objection was sustained was because the principal was present.

Reversed and remanded.

Messrs. Kimball and Allison, and Mr. George Sutherland, for the appellants.

The court stated an incorrect rule of damages. The measure of his damages was the loss of profits, and that is all. 1 Sutherland on Damages, 79, 139, 17, 18. Fultz v. Wycoff, 25 Ind. 321; Fox v. Harding, 7 Cush. 516; Bell v. Cunningham; 3 Pet. 69; Sisson v. Railroad Co., 14 Mich. 489; Burrill v. N.Y., etc. Co., 14 Mich. 34; Maynard v. Pease, 99 Mass. 555; White v. Mosely, 8 Pick. 356; Noble v. Ames, M. Co. 112 Mass. 492; Lashus v. Chamberlain, 5 Utah 140; 6 Utah 385; Rockwood v. Allen, 7 Mass. 254; Allison v. Chandler, 11 Mich. 542; Northrup v. McGill, 27 Mich. 234; Griffin v. Colver, 16 N.Y. 494. If the expenses to plaintiff were allowed in addition to his net profits, the rule would not only be compensation, but in addition thereto punishment of the defendant for his breach of contract.

The court erred in not permitting witness Stiffler to testify to the circumstances under which the paper introduced in evidence as the contract was executed. The complaint alleged a contract. The answer denied the contract. It was competent for the defendants to introduce any evidence tending to show that the alleged contract was never executed. Suppose in answer to the question propounded the witness had answered that he gave the memorandum to plaintiff at his request in order that the plaintiff might submit the schedule of prices to a Mr. Black, as defendants claimed, which plaintiff while on the stand had denied on cross-examination, and that no contract had been entered into at that time, and would not be unless plaintiff notified the defendants that the prices were satisfactory, would not such evidence have tended to prove that no contract was ever entered into? Evidence is certainly admissible if it tends to prove an issue. Schuhardt v. Allen, 2 Wall. 359; 1 Greenleaf on Evidence, sec. 5a; Wells v. Higgins, 30 A. 861; Lyon v. Hancock, 35 Cal. 372; Fleming v. Ins. Co., 33 Am. Dec. 33.

Messrs. King and Houtz, and Mr. Samuel R. Thurman, for the respondent.

The evidence sought to be extracted from the witness Stiffler was solely for the purpose of contradicting the written instrument. It was for the court to say whether or not upon its face it was a contract. Any evidence tending to show that it was not intended to be a contract was clearly inadmissible. Such evidence is inadmissible to show that a deed was to be redelivered, Beers v. Beers, 22 Mich. 42; or that a promissory note was intended as a receipt, Shaw v. Shaw, 50 Me. 94, s. c. 74 Am. Dec. 605; or to show that a delivered deed was designed to take effect only on condition of the grantor's death. Mowry v. Henry, 86 Cal. 491. There was no question of fraud, mistake or illegality.

The court was right in assuring the making of the contract, because one of the defendants was present, and saw it delivered. The court rightly charged as to the breach because it was admitted not only by the pleadings, but no evidence was offered to contradict it. No evidence was given to disprove in any way that plaintiff expended the moneys claimed in going to Montana. Hence there could be no prejudice in the charge of the court.

As to the rule of damages, when the charge is considered all together it is correct. It evidently means just what defendants claimed it ought to have been. The jury so understood it, for it is apparent that their verdict was arrived at on that basis, and that substantial justice has been done. Hence there was no prejudice to defendant even if the charge was erroneous. Authorities were cited upon this point.

SMITH, J. MINER, J., and BARTCH, J., concurred. ZANE, C. J., appears to have heard the argument but did not concur or dissent.

OPINION

SMITH, J.:

In this case plaintiff commenced an action in the first district court against the defendants, who were partners under the style of Corey Bros. & Co., to recover the sum of $ 25,000 damages alleged to have accrued to him by reason of the breach of a contract made with the defendants. The complaint, in substance, alleges that on May 6, 1891, the defendants made a contract with the plaintiff to do certain grading on the Great Northern Railroad in Montana, amounting to 70 stations of 100 feet each, at certain prices specified in the complaint for various kinds of work. Then follows an allegation that the plaintiff, relying upon the contract, paid out and expended $ 5,000 in money in shipping an outfit from the Territory of Utah to the state of Montana to do such work; that the defendants wrongfully and in violation of their contract refused to allow the plaintiff to do any part of this work; that he was damaged in the sum of $ 20,000 in loss of profits, no part of which the defendants have paid. The prayer was for $ 20,000 loss of profits and $ 5,200 paid out in getting to Montana. The defendants answered, denying specifically all of the allegations of the complaint; denied they ever made the contract or any contract with the plaintiff. The case was tried before a jury on the 7th day of May, 1892, and a verdict rendered in favor of the plaintiff and against defendants for the sum of $ 5,200. A motion for a new trial was made in the court below upon several grounds. The plaintiff having voluntarily abated the judgment, and reduced it to the extent of $ 1,000, the motion for a new trial was overruled. The defendants appealed from the judgment and from the order denying the new trial.

Upon the trial of the case the court gave the jury the following instruction: "Gentlemen of the jury, you are the sole judges of the evidence, its credibility, its force, and what weight you should give it in determining your verdict. It is conceded here that a contract was made; that this man had a contract for doing this work mentioned. It is conceded also that these defendants prevented him from doing that work; so that the only question left for you is to determine the amount of damages. The plaintiff is entitled to a verdict of some kind. What that shall be is a question for you to determine. In the first place, the plaintiff is entitled to the expense he was at in moving to Montana. In the second place, he is entitled, in addition to that, to the amount of profit, if you can find that out from the evidence, that he would have made on this contract if he had been allowed to do it. They must prove these things by a preponderance of the evidence. The burden is upon the plaintiff to prove beyond mere nominal damages. He is entitled to that anyway,--nominal damages. In finding out what his profit would be, you first figure up what amount of money he would have received for the work. That is one side. Then you put on the other side what amount of expense he was at in getting there, and then the cost of doing the work. You estimate also the waste; the deterioration of the tools he used or would have used in doing the work; the deterioration, if any, in the prices of animals he took there. All these elements enter into the question of the profits. You add to that on the other side losing the profits, the value of his own services, his wages, counting all those things, and ascertain the amount of pay he would get for the work. If he has by a preponderance of the evidence shown that he would then have made a profit, you will give him the benefit of that profit. Add that to the expense he was at in moving from where he lived to Montana."

The defendants having excepted specially to certain portions of the charge, the court called the jury back, and when they returned into court gave the following additional instructions: "Gentlemen, my instructions were wrong in one particular, and perhaps two. I instructed you that it was conceded that the contract for this work was made. Counsel say that it is not true; therefore I instruct you now that you must find, in order to find for the plaintiff, by a preponderance of the...