Hewitt v. Maize

• Decision Date: 18 December 1897
• Citation: 51 P. 607,5 Idaho 633
• Parties: HEWITT v. MAIZE
• Court: Idaho Supreme Court

51 P. 607

5 Idaho 633

HEWITT v. MAIZE

Supreme Court of Idaho

December 18, 1897

CONTRACT FOR WORK AND MATERIALS-NONSUIT-VARIANCE BETWEEN PLEADINGS AND PROOFS.-H. made a contract to perform certain work and supply certain materials for three defendants. The contract was made with defendant M. On the trial the other two defendants consented to the taking of judgment against them. After the conclusion of plaintiff's evidence the counsel for the defendant moved for a nonsuit, on the ground of variance between the pleadings and proofs, the district court overruled the motion for a nonsuit, and, defendant declining to put in any evidence, judgment was rendered in favor of plaintiff against defendant M. Held, that under the statutes of Idaho the action of the district court was correct especially as the acts of defendant were calculated to lead plaintiff to the belief that defendants were jointly interested in the contract.

(Syllabus by the court.)

APPEAL from District Court, Blaine County.

Affirmed, with costs.

Lyttleton Price, for Appellant.

The court erred in refusing to grant a nonsuit. The plaintiff not only failed to prove the cause of action declared upon, but utterly denied that he had such a cause of action. He attempts to prove a claim against Maize individually for the whole sum which, in his complaint, he declares was due him from Maize and G. W. Venable and Susie Venable, jointly. All his evidence as to the sole liability of Maize was inadmissible. The proofs offered were not directed to the issue presented in the pleadings. (Hayne on New Trial and Appeal, pars. 115-119, and the cases there cited.) The entry of judgment against Maize alone for the full amount demanded against him and two others jointly is error. (1 Freeman on Judgments, par. 43, and cases cited.) By taking judgment against one he merges the cause of action as to that one, and puts it out of his power to claim anything against the others severally or all combined. (People v. Harrison, 82 Ill. 84; Sessions v. Johnson, 95 U.S. 347; United States v. Ames, 100 U.S. 35; Wilson v Buell, 117 Ind. 315, 20 N.E. 231; Ferrall v Bradford, 2 Fla. 508, 50 Am. Dec. 293; Jameson v. Barber, 56 Wis. 630, 14 N.W. 859; Freeman on Judgments, pars. 231, 232, and cases cited.)

A. F. Montandon, for Respondent.

On the assumption that the testimony shows a single contract and not a joint obligation, it would establish a variance, and all the objections of appellant in the court below were based upon that ground. But again our statute modifies the common law, and makes it fatal only when the variance is material and actually misleads the adverse party to his prejudice. Section 4225 of our code says: "No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." And section 4226: "Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs." (Lewis v. Clarkin, 18 Cal. 399; Stoddart v. Van Dyke, 12 Cal. 438; People v. Frisbie, 18 Cal. 402.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

The plaintiff brought his action against the three defendants upon an alleged joint contract for the performance of certain labor, in the construction of three water wheels and certain other work. The first paragraph of plaintiff's complaint is as follows: "The plaintiff complains, and alleges that about the first day of May, 1895, plaintiff and defendants entered into an agreement whereby plaintiff agreed to construct three certain water wheels, to construct and repair the fences, and to construct a privy upon the land and farm hereinafter described, and to furnish certain materials for the same, said defendants to furnish certain other materials; and said defendants agreed to pay him for the same, first, the value of the materials to be furnished by plaintiff, and the value and compensation per day for each day employed in the performance of the labor and construction aforesaid. And plaintiff avers that he worked upon said wheels, fences and privy under said agreement, and furnished material thereunder, and has fully kept and performed the said agreement in all things to be by him kept and performed but the said defendants have not paid him therefor, nor any part thereof." The complaint then proceeds to allege the performance of the labor, and the furnishing of certain materials, and claims judgment therefor in the sum of $ 256.69 against defendants. It seems plaintiff attempted to file a mechanic's lien, but failed in establishing it, and that part of the complaint was abandoned. A general demurrer to the complaint was filed by defendant Maize, which was overruled. The defendant Maize then filed his separate answer to the complaint of plaintiff. The first paragraph of the said answer is as follows: "Comes now the defendant H. B. Maize, and answers the plaintiff's complaint as follows: Said defendant denies that about the first day of May, 1895, or at any other time, this defendant entered into any agreement whereby plaintiff agreed to construct three certain wheels, to construct and repair the fences, and to construct a privy upon the land described in the complaint, or to do or perform any of the things alleged upon the described lands and premises, or upon any premises, or that this defendant ever entered into any contract or agreement with plaintiff to do anything whatever, or that plaintiff ever kept or fulfilled said alleged or any contract or agreement, or that this defendant is indebted to plaintiff for the said alleged work and material, or for anything whatever in any sum whatever"--and also adds general denials of all the averments of the complaint as applicable to himself; i. e., defendant Maize does not deny the making of the contract as alleged in the complaint, but denies that he individually made such contract. The defendants George W. Venable and Susie Venable file the following paper: "Defendants George W. Venable and Susie Venable hereby consent that a judgment may be entered against them in above-entitled court and cause, conformable to plaintiff's complaint." Upon the trial, plaintiff testified to the making of the contract for the alleged work by defendant Maize, with him, the performance of the work by him, and that the same was done upon the ranch or premises occupied by Maize. In the progress of the trial the following question was put to the plaintiff upon his cross-examination by counsel for defendants: "Q. What, if anything, had Mr. Venable to do with your work on that ranch, and the material...