Johnson v. Johnson
| Decision Date | 10 April 1951 |
| Docket Number | No. 2488,2488 |
| Citation | 68 Wyo. 61,229 P.2d 918 |
| Parties | JOHNSON, v. JOHNSON et ux. |
| Court | Wyoming Supreme Court |
Ivan S. Jones, Kemmerer, Guy B. Hockett, Pinedale, for appellants.
No appearance for plaintiff and respondent.
This cause presents a direct appeal proceeding to review a judgment of the district court of Sweetwater County. The litigation arose in consequence of a controversy concerning the amount claimed to be due to the plaintiff, Charles W. Johnson, now the respondent here, from the defendants Frank L. Johnson and his wife, Hattie, who are the appellants in this court. The action in the court below was brought by Charles against the defendants, Frank and Hattie, upon an account, the plaintiff's petition in its alleged first cause of action being in the abbreviated form authorized by section 3-1408 W.C.S. 1945, which was in substance originally borrowed from the practice code of the State of Ohio; see Pages Ohio Code § 11,334.
The second alleged cause of action in plaintiff's petition was based on a mechanic's lien statement under which a foreclosure thereof was sought. The defendants' answer denied that any balance at all was due plaintiff on the account and claimed that $400.00 had been paid by them as a final settlement of the entire matter. Plaintiff filed a reply denying that this sum had been received by him as a settlement of his claims. We shall usually hereinafter refer to the parties by their given names, or as plaintiff and defendants.
On the trial of the case the testimony was sharply conflicting as to the issues before the court and accordingly we may limit our consideration of the facts presented in the case as required by our former decisions and as stated in Willis v. Willis, 48 Wyo. 403, 429, 49 P.2d 670, 678, thus: 'In this connection it must be borne in mind that the appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it.' See also Jacoby v. Town of the City of Gillette, 62 Wyo. 487, 494, 174 P.2d 505, 177 P.2d 204, 169 A.L.R. 502, and cases there cited.
The facts as developed on the trial of the case in the district court properly to be considered at this time are substantially as follows:
Previous to the year 1945 one Charles H. Howell owned a ranch located on Green River about ten miles north of the town of Green River, Wyoming. In 1929 Howell had caused to be constructed by plaintiff, Charles W. Johnson, a water wheel in the river for irrigation of some land in his ranch. In 1944 and 1945 he arranged with Charles W. Johnson to repair or reconstruct this wheel. At that time Howell was the ranch owner. Charles began the new work on this water wheel about March 2nd or 3rd 1945. This labor on the project was performed by Charles and a helper named Schultz, but Charles as contractor procured all the material for this construction job, and supervised what was done. The new work was finally completed about June 25, 1945. On April 14, 1945 Howell sold this ranch to the defendants. At that time a substantial part of the work still remained to be done. Thereafter Howell died some time in the year 1946. Charles claimed to have worked 379 hours on this project, after Frank and his wife became the owners of the ranch, and he also paid his helper, Schultz, who worked about 285 hours, the going rate of pay of 80 cents per hour. As the principal contractor who supervised the work his testimony was submitted that the going rate of pay at that time in the Green River area for work of a supervisory character was $1.25 per hour. There was also testimony on behalf of the plaintiff in the case that the prices of all the material items used in the wheel construction as shown by the itemized account hereinafter referred to were reasonable. The credits shown on this account were paid by Frank Johnson. The total of the items in work, labor and material shown by plaintiff's account attached to plaintiff's petition appears to be the sum of $1475.69. Deducting the payments made a balance still existed of $709.56 according to that account--the first item of which is dated March 6th 1945.
At the time of the sale of the ranch Charles Johnson discussed with Frank and Howell the matter of the water wheel construction costs, this conversation occurring in the office of one Nebeker, an attorney-at-law, in the town of Green River, Wyoming. At that time Howell and Charles were square as stated by the latter to Frank and to Nebeker. Charles, at that time, never told Frank that it would cost $400.00 or less to complete the wheel; that when Charles went to see Frank about final settlement for this wheel construction and materials supplied, Frank had paid Charles $100.00 and at that time (June 27, 1945) paid him $300.00 more. Charles at that time did not say to Frank 'that squares us up.' The condensed itemized account presented by Charles W. to Frank at that time which purported to show the amount due from Frank to Charles and which was admitted in evidence without objections, is as follows:
"Green River, Wyo
June 27, 1945
Frank L Johnson
To Chas. W. Johnson Dr
Lumber, Hardware, Paint, and
Cement .......................................... $ 213.02
Structural Steel Girders ............................ 100.00
Angle Irons .......................................... 18.90
Cutting and Welding ................................... 6.00
Gas, Oil and Grease .................................. 13.60
Sand and gravel ...................................... 28.05
Drayage .............................................. 30.00
--------
409.57
Labor, Max Schultz 284 1/2 hr
at 80 cents 227.60
Social Security Tax 2.28
Emp. Security Tax 6.37
------- 236.25
Labor, C. W. Johnson 379 hr. at 1.25 473.75
--------
1119.57
Credit by Check 100.00
--------
Balance $1019.57
June 27, Credit 300.00
--------
Bal 719.57 "
At this point it should properly be noted that under the date of June 27, 1945, a credit item of $300.00 is disclosed and a balance still due of $719.57 from Frank to Charles. The entire account aforesaid other than the credit of June 27th was in typewriting, but the date and the word 'credit' and the figures showing the amount of the credit as well as the balance claimed to be due are written in in pencil and are in the handwriting of Charles according to the record before us. At that time Charles did not tell Frank that the latter had lived up to his agreement. Frank had told Charles previously to make certain changes in the plan of construction of the water wheel. This direction about changes was made approximately May 20, 1945, and the change directed at that time was that Charles should eliminate two of the piers to be used for the wheel and to employ the old cribbing to carry the upper end of the framing.
In response to inquiry by Howell at the time the ranch was sold as to what it would cost to complete the wheel Charles stated that the cash outlay would be to Frank around $400.00 but that he, Charles, would not guarantee that amount as a guaranteed price; that at that time Charles never entered into any oral or written agreement to complete the wheel for any specific figure; the water wheel was necessary to get water into the irrigation ditch which carried water on to some land of the Frank Johnson ranch.
The following verbatim excerpts from the record, present the explanation given by the plaintiff to the trial court why, as he (plaintiff) said, he never at any time undertook to give the defendant, Frank Johnson, a maximum or specific price for completing the water wheel.
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