Hecht v. Stanton
| Decision Date | 19 November 1895 |
| Citation | 6 Wyo. 84,42 P. 749 |
| Parties | HECHT v. STANTON |
| Court | Wyoming Supreme Court |
Rehearing Denied February 1, 1896, Reported at: 6 Wyo. 84 at 90.
Commenced in District Court May 18, 1891.
ERROR to the District Court for the county of Laramie, HON. RICHARD H. SCOTT, Judge.
Frederick J. Stanton brought this action against Charles Hecht and Edward Farrell to recover the sum of $ 1,284.20 with interest from September 1, 1890. The cause of action as stated in the petition was that the plaintiff had, at the instance and request of defendants, made, excavated, and constructed an irrigating ditch, and in so doing had necessarily removed 29,432 cubic yards of stone, gravel, and earth, which was reasonably worth ten cents per cubic yard, or a total sum of $ 2,943.20. Payments amounting to $ 1,659 were admitted.
Edward Farrel did not appear, and it was developed that he had no interest in the ditch. The defendant, Charles Hecht, filed an answer denying the performance of the work as alleged in the petition, and as a separate defense averred in substance that the plaintiff had commenced the construction of an irrigating ditch, and that the work so commenced was not done upon any promise of either defendant to pay the reasonable value of the excavation and work, but that it was done under an express contract in writing. The terms of the contract were then set out, by which it appeared that the line of the ditch had been surveyed by William O. Owen, an engineer, and the ditch was to be constructed along and in conformity with that survey; that the work should be done to the entire satisfaction, and under the supervision and direction of said engineer; that the amount of dirt and material removed should be determined by the measurements of said engineer and that the ditch should be fully completed on or before July 15, 1890. It was alleged that the ditch was not constructed in a good and workmanlike manner, nor of the dimensions required by the contract, nor to the satisfaction of said engineer; and that neither the engineer nor the defendants had received the ditch. It was, however, averred that a partially constructed ditch was submitted to the engineer, and plaintiff refused to complete it to the damage of the defendant in the sum of $ 1,000. Plaintiff, in his reply, admitted the contract, and set the same out in haec verba, but claimed that he had been induced to enter into the contract by fraudulent representations respecting the character of the ground and soil to be excavated. It was also charged that defendant had accepted the ditch as fully completed. All charges contained in the answer concerning the failure of plaintiff to properly perform his contract were denied. Upon the trial the engineer in charge testified that had the ditch been properly constructed and completed there would have been removed 22,212 cubic yards of earth. The plaintiff produced two engineers who had surveyed the ditch and taken measurements thereof after its construction who testified respectively that 29,432 cubic yards, and 27,476 cubic yards, had been removed. The defendant produced a witness who testified that it would cost about $ 1,000 to complete the ditch in accordance with the contract, after plaintiff had abandoned the work. Some evidence was introduced by both parties in respect to the character of the possession which defendant took, when he assumed charge of the ditch. The attempt on the one hand being to show an acceptance, and on the other to disprove it. The jury returned a verdict for plaintiff for $ 825.34. Defendant prosecuted error from the judgment entered upon the verdict.
Judgment affirmed.
Burke & Fowler for plaintiff in error.
Such statements as are alleged to have been made by plaintiff in error as to the character of the soil to be excavated, could amount only to expressions of opinion, which, although erroneous, would not authorize avoidance of the obligations of the contract on the part of the defendant in error, the contractor. Representations as to what is under the surface in the soil, are and can be but expressions of opinion, and upon which fraud can not be predicated. (Nounan et al. v. Sutter Co., Land Co., 81 Cal. 1; Watts v. Cummings, 59 Pa. 84; So. Dev't Co. v. Silver, 125 U.S. 247; 2 Pars. on Cont., 770-781.) The contractor had ample opportunity to ascertain the exact nature of the work before signing the contract. A neglect to make a reasonable examination will preclude one from rescinding a contract on the ground of fraudulent representations. (Farnsworth v. Duffner, 142 U.S. 43.) The fraud must clearly appear, and the burden is upon the plaintiff. (U. R. R. Co. v. Duff, 124 U.S. 173.) The representation must be material, and be acted on in belief of its truth. (Farrar v. Churchill, 135 U.S. 609.) A party seeking to set aside a transaction for fraud must act promptly upon ascertaining the fraud. (Nounan v. Sutter L'd Co., supra; Cruger v. R. R. Co., 16 N.W. 313; R. R. Co. v. Rawle, 24 Wend. 74; Wilcox v. Stewart, 11 So. 659.)
Where parties agree that work to be done by one of them is to be performed at a fixed price, and to the satisfaction of a certain individual, and upon his certificate as to the amount due, his judgment and estimate as to such work is conclusive. (Ogden v. U.S. 60 F. 725; Moore v. Kerr, 65 Cal. 519; C. S. F. & C. R. Co. v. Price, 138 U.S. 125; Hudson v. McDarthy, 33 Wis. 332.) It is error for the court to give undue prominence in the instructions to one phase of the case. (Lincoln v. Beekman, 23 Neb. 682; Kersenbrock v. Martin, 12 id., 376; Markle v. Mundy, 11 id., 218.) It is error to refuse an instruction which states the law correctly in any possible view of the case. (Matthewson v. Burr, 6 Neb. 320; Severance v. Melek, 15 id., 614; Haussel v. Thrail, 18 id., 488.) The question whether a representation alleged to be false is or is not material is a question for the jury. (2 Pars. Cont., 770; McAleer v. Outerbridge, 35 Md. 429.)
Defendant in error, in his own behalf, contended that fraud had been practiced, and that the verdict was justified, discussing the evidence quite fully in the brief, and cited the following authorities. ...
To continue reading
Request your trial