Johns v. Modern Home Crafters, Inc.

• Decision Date: 30 July 1958
• Docket Number: No. 9694,9694
• Citation: 328 P.2d 641,134 Mont. 76
• Parties: Bob JOHNS, Plaintiff and Respondent, v. MODERN HOME CRAFTERS, INC., a Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 641

328 P.2d 641

134 Mont. 76

Bob JOHNS, Plaintiff and Respondent, v. MODERN HOME CRAFTERS, INC., a Corporation, Defendant and Appellant.

No. 9694.

Supreme Court of Montana.

July 30, 1958.

Fred N. Dugan, Billings, argued orally for appellant.

Jones, Olsen & Dowlin, Paul G. Olsen, Billings, argued orally for respondent.

ANGSTMAN, Justice.

Defendant has appealed from a judgment in favor of plaintiff based upon the verdict of a jury. The complaint contains two causes of action. The jury awarded $2,956 on the first cause of action and $73.96 on the second.

In the first cause of action plaintiff seeks recovery for work, labor, and services performed pursuant to an agreement with the defendant, and in which it is alleged that defendant 'has become indebted to the plaintiff' in the sum of $2,956 for such work, labor, and services but has not been paid the same or any part thereof.

The second cause of action seeks to recover for two ladders alleged to have been loaned by the plaintiff to the defendant 'with the implied agreement that the defendant would compensate the plaintiff for the use thereof at a reasonable price.' It is alleged that the defendant has been in possession of the ladders for one year and has refused and neglected to relinquish them after demand or to pay a reasonable sum for the use thereof. It is alleged that the reasonable worth of the ladders is the sum of $338.

Defendant demurred to each cause of action and after its demurrer was overruled it filed an answer denying generally the allegations of the complaint except the defendant admits that plaintiff and defendant entered into an agreement whereby the plaintiff performed work and labor for the defendant at an agreed rate of compensation. It admits that pursuant to that agreement the plaintiff earned and the defendant was obligated to pay to the plaintiff the sum of $2,956.

It then alleges that on and between the 31st day of August 1953, and the 9th day of April 1954, at Billings and at other places, the defendant paid to plaintiff the money demanded in the complaint by way of cash and by way of the value of rentals. The parties agreed that any and all affirmative matter contained in the answer was deemed denied by the plaintiff.

At the trial, plaintiff to prove his first cause of action was asked this question: 'Mr. Johns, what was the total sum of money due and owing you from Modern Home Crafters at the end of your term of employment?' This was objected to as calling for a conclusion. The objection was overruled and the witness answered $2,956.' He was asked, 'How much was paid to you on the $2,900?' His answer was, 'Nothing.' However, at another point plaintiff admitted that about $2,700 had been paid.

Defendant introduced in evidence checks issued by it and made payable to plaintiff which plaintiff admits receiving, aggregating in amount the sum of $2,963.64. In rebuttal plaintiff was then asked this question: 'Are there any moneys the Modern Home Crafters owe you that they failed to pay you over and above the amounts evidenced by these checks?'

Objection was made to this question on the ground that it called for a conclusion and that it was a variance from the issues framed by the pleadings. The objection being overruled the witness answered, 'yes', and stated the amount to be $2,965. Later he said the correct amount was $2,956. There was no other evidence showing how the conclusion was arrived at or what items went to make up the total.

Defendant contends that the first cause of action does not state facts sufficient to constitute a cause of action in that the allegations are but conclusions of law. For the purposes of this opinion we assume without so deciding that it does state facts sufficient to constitute a cause of action. The court erred in overruling the objection made to the rebuttal evidence.

Under our statute, R.C.M.1947, Sec. 93-3202, subd. 2, a complaint must advise the defendant 'in ordinary and concise language' of the facts upon which plaintiff predicates his right of recovery. Here according to the allegations of the complaint the only issue that defendant was required to meet was the issue regarding the amount of $2,956 which plaintiff claimed to have earned.

When plaintiff was permitted to testify that there was still $2,956 due him after he had been paid that much, defendant was confronted with a cause of action not pleaded. The only issue tendered by the pleadings was whether the sum of $2,956, claimed by plaintiff, had been paid as alleged in the answer and as shown by the cancelled checks. In fact, in his brief, counsel for plaintiff makes this statement: 'The only thing in issue at the trial on the first cause of action was whether or not the defendant corporation had paid to the plaintiff the sum of $2,956, and if said amount was still owing to the plaintiff.'

The record leaves no doubt that defendant paid plaintiff the sum of $2,963.64 by checks.

If plaintiff had earned $5,900 plus and was paid only $2,963.64 defendant should have been so advised either in the complaint or in the reply. As the pleadings stood plaintiff's total claim for wages was $2,956, and this much the evidence shows had been paid.

It was error to admit the rebuttal evidence upon both grounds stated in the objection.

For a witness to state that another is indebted to him in a stated amount is a conclusion of law. 32 C.J.S. Evidence Sec. 453, p. 91, note 67; Knowles v. Boylston, 103 Fla. 20, 137 So. 6; Frederick v. Ballard, 16 Neb. 559, 20 N.W. 870; Parker v. Otis, 130 Cal. 322, 62 P. 571.

Likewise, the evidence constituted a departure from the allegations contained in the pleadings. As counsel for plaintiff stated in his brief, the only...