Innes v. Hay

• Decision Date: 10 February 1922
• Docket Number: 1029
• Citation: 28 Wyo. 274,203 P. 1091
• Parties: INNES v. HAY
• Court: Wyoming Supreme Court

203 P. 1091

28 Wyo. 274

INNES v. HAY

No. 1029

Supreme Court of Wyoming

February 10, 1922

ERROR to the District Court, Albany County, HON. JAMES H. BURGESS Judge.

Affirmed.

S. C Downey, and F. E. Anderson, for plaintiff in error.

The Court erred in overruling the motion of plaintiff to strike out parts of the amended petition, and to require a more definite and specific statement of claim. The petition did not comply with the requirements of Section 4380 Comp. Stats 1910 requiring that causes of action be separately stated and numbered. (King v. Beaumier, 174 P. 613; 25 Wyo. 35.) The credit should have applied to the cause of action that first accrued. Plaintiff was not entitled to jury trial, not having demanded a jury within time. (Laws 1913, Chapter 66.) (Baldwin v. McDonald, 24 Wyo. 108.) There was an improper application of credits. There should have been separate verdicts upon each cause of action, defendant having excepted to the verdict at the time of his return. (Spelling on "New Trials" Vol. 1, p. 423; Warner v. Thomas, 105 Cal. 409; King v. Abell, 12 P. 718; Thornton on Trials, Sec. 2640.) Several motions attacking the form of plaintiff's petition were filed and overruled, hence plaintiff in error is not changeable with failure to take exceptions to the pleading. The verdict is not supported by the evidence. There being at least two causes of action there should have been a verdict in each. (King v. Beaumier, supra.)

Arnold, Patterson & Arnold, for defendant in error.

The petition stated the ultimate facts in accordance with the rules of the code. (Comp. Stats. 1910, Section 4379. Ramsey v. Johnson, 7 Wyo. 398.) The allowance of a jury was within the discretion of the Court. (Sec. 4453 Comp. Stats. 1910; Chosen Friends v. Otterson, 7 Wyo. 89; 16 R. C. L. 218; Kahn v. Company, 4 Wyo. 440; Bullock v. Co. 31 P. 367; McCarthy v. R. R. Co., 15 Mo.App. 385; Wood v. Ry. Co., 79 P. 182.) The Court had authority to call a jury upon its own motion. (Knapp v. Pendo, 79 P. 209; Hart v. Kascade Co., 81 P. 739; De Remer v. Anderson, 737 P. 741.) There is no assignment that the judgment is excessive. The verdict was for a lump sum and no exception was taken on that ground prior to the discharge of the jury; it is apparent from the verdict that all issues were passed upon by the jury.

There was but one contract involved and irrespective of the division or setting off of the items constituting plaintiff's claim, the nature of the claim could not be changed as a matter of law. (1 C. J. 1055.) The question is governed by the nature of the right or subject of controversy presented for adjudication. (1 C. J. 1062.) In mutual acts a cause of action exists in favor of him only to whom there is a balance due. (Dewing v. Dewing, 127 N.W. 1051.) Kind v. Beaumier cited by plaintiff in error is not in point in view of the facts. The manner of making application of credit was in nowise prejudicial to the defendants. The penalty for frivolous appeals should be invoked since there was no reasonable cause for proceedings in error or for keeping plaintiff out of his money by the delay occasioned thereby. (Section 5110 Comp. Stats. 1910. American Bar Association, Journal, Vol. 6, No. 5.)

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Alec Hay, plaintiff below, brought this action against John Innes, defendant below, to recover a balance due him of $ 1389.30. The amended petition was in two causes of action, or counts. The plaintiff in the first cause of action alleges that he entered into an oral contract with defendant whereby defendant hired him to work on a ranch, agreeing to pay the going wage; that pursuant thereto he performed services, claiming therefor the going wage as follows: From May 1, 1917 to December 31, 1917, 8 months at $ 55.00 per month, total $ 440.00; From January 1, 1918 to April 30, 1918, 4 months at $ 75.00, a total of $ 300.00; from May 1, 1918 to September 30, 1918, 5 months at $ 95.00 per month, total $ 475.00; from October 1, 1918 to March 31, 1919, 6 months at $ 75.00 per month, total $ 450.00. These items, set forth in different paragraphs, total $ 1665.00. Under the second count plaintiff claimed $ 596.00 for team hire. Under separate heading marked "III," plaintiff set forth that the total of the amount due from defendant to plaintiff for services and team hire is the sum of $ 2261.00, less payments made at various times aggregating $ 871.70, leaving a balance due of $ 1389.30, for which, with interest from April 1st, 1919, plaintiff demands judgment. An answer and counter claim was filed and the case was submitted to a jury who returned a verdict of $ 956.00 for plaintiff on which judgment was entered. Said defendant brings this case here on petition in error. The parties are herein designated the same as in the court below.

Defendant, before answering, filed a motion to make the petition more definite and certain, which was overruled. This motion is not argued in the brief and no prejudicial error pointed out. Defendant also filed a motion to strike certain portions of the petition, including the allegation as to the oral contract for services and all that part of the petition marked III. This motion was also overruled. We do not exactly understand just the contention of counsel on these points. It seems to be contended that the items claimed under the first cause of action constituted separate causes of action. But this is not true. All the items accrued under the one contract, and it would have been unnecessary to have separated them into paragraphs. Part III of the petition simply summarizes the whole, is applicable to both counts, and while the method of pleading is somewhat unusual, and perhaps irregular, we find no prejudicial error therein. (See Bricker v. Ry. Co., 83 Mo. 391.) We are unable to see the force of the argument that the credits should have all been applied on the first cause of action, or the first two items therein. Wherein defendant was prejudiced by reason of the fact that the credits allowed in the petition of $ 871.70, or the credits finally proven of $ 1205, were not so applied, has not been pointed out. We do not see that it would have made any difference whatever.

No jury was demanded in the proper time. But after the expiration of the time allowed by law, plaintiff filed an application for a jury, accompanied by the jury fee. The court, over the objection of defendant, allowed the application. We see no error in this. The court in its discretion had the right to submit questions of fact to the jury, either upon its own motion or upon application made therefor. (Chosen Friends etc. v. Otterson, 7 Wyo. 89, 50 P. 194; Morris v. Morris, 28 Mo. 114; Whipple v. Preece, 24 Utah 364, 67 P. 1072; Wood v. Ry. Co., 28 Utah 351, 79 P. 182; Ogden Valley etc. v. Lewis, 41 Utah 183; 125 P. 687; Davis v. R. Co., 45 Utah 1, 13, 142 P. 705; Board of Education v. West, 55 Utah 357, 186 P. 114; Knapp v. Order of Pendo, 36 Wash. 601, 79 P. 209; Sholin v. Skamania Boom Co., 56 Wash. 303, 105 P. 632; 28 L. R. A. (N. S.) 1053; Fitzpatrick v. Newland, 81 Wash. 401, 142 P. 867; Moot v. Moot, 214 N.Y. 204, 108 N.E. 424.) In fact, it is apparent that where an application therefore is made and allowed, the effect is the same as where the court calls a jury on its own motion.

Counsel for defendant claims that an item of $ 5.90 for telephone calls should have been allowed him, as a credit. As we read the record, the evidence in the case would have authorized a judgment for a larger amount than was returned, outside of the interest which was not included. We cannot, therefore, say that full allowance for the item mentioned was not made. Even if it clearly appeared that the amount was excluded from the verdict, it would be too small to justify a reversal, except by an order directing a new trial only upon failure of plaintiff to remit the amount from the judgment.

The petition containing two counts, counsel for defendant contends that there should have been a separate verdict on each count. He seems to think that the case of King v Beaumier, 26 Wyo. 35, 174 P. 612, so holds. But in that case a separate finding, or verdict, was returned on each of the eight counts in the petition, and the point in the case at bar was not involved therein and that case does not control this case. It appears to be true that the rule contended for obtains in some jurisdictions. (Thompson on Trials, § 2640.) The reason for this rule is said to be based on several considerations: (1) to advise the adversary of the amount of his liability on each cause; (2) to obviate the necessity of a new trial on all counts, when the judgment on one or more of them cannot be sustained, and to enable the claimant in such case to dismiss the defective counts and take judgment for the rest. (Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576; Bricker v. Ry. Co., 83 Mo. 391.) As to the first reason, it may be said that if the...