King v. Beaumier

Decision Date06 September 1918
Docket Number868
Citation26 Wyo. 35,174 P. 612
PartiesKING v. BEAUMIER
CourtWyoming Supreme Court

ERROR to District Court, Albany County, HON. V. J. Tid-BALL, Judge.

Action by Victor Beaumier against Herbert King. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Stephen C. Downey and Cassius M. Eby, for plaintiff in error.

The evidence shows the existence of a partnership between the parties to this action and that defendant in error performed services for plaintiff in error to compensate certain losses in a partnership undertaking. The evidence fails to support the verdict and judgment as rendered, and the same should be vacated. (Fieldhouse v. Leisburg, 15 Wyo. 207; U. P. R. R. v. House, 1 Wyo. 27.) Defendant in error was impeached by four disinterested witnesses. A verdict unsustained by evidence is reversible. (Sec. 2652 Comp Stats. 1910; Marshall v. Rugg. 6 Wyo. 286.) It is well settled that a verdict unsustained by the evidence will be set aside. (Denver & R. G. R. Co. v. Peterson, 30 Colo. 77, 69 P. 587; Westfield First Nat. Bank v Smith, 99 Mass. 605; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 431; Barnes v. Mead, 30 N.C 292, 49 Am. Dec. 390; Oregon R. & Nav. Co. v. Egley, 2 Wash. 409, 26 P. 973; Rahles v. J. Thompson & Sons Mfg. Co., 137 Wis. 506; Kester v. Wagner, 22 Wyo. 512; White v. Dougal, 159 P. 907.) It is apparent that the jury rendered quotient or chance verdicts on four of the counts, since vastly different amounts are alleged due therein where the jury found the same amount due on each of them, a result not sustained by the evidence, and they should be set aside. (2 Thompson on Trials, 2606; 22nd Enc. P. & P. 855; Williams v. State, 15 Lea 129.) There is a variance between pleading and proof in that plaintiff sets up two distinct contracts and offers proof on different contracts; a party cannot declare on one contract and then recover on another. (Sumrell v. Co., 62 S.E. 619; Allen v. Burns, 201 Mass. 74, 87 N.E. 194; Jackson v. Bruice, 63 S.E. 823.) The party introducing the contract in evidence is bound by it in its entirety. (Jonasson v. Weir, 115 N.Y.S. 6.) In an action upon an oral contract, all the essentials must be proven. (Benedict v. McMurtry, 115 N.Y.S. 87.) The recovery must be based on the contract alleged. (Green v. South States Lumber Co., 50 So. 917 (Ala.); Seavey v. Ansonia Mfg. Co., 111 N.Y.S. 661.) Recovery cannot be due on quantum meruit in an action brought on a contract without separate allegations. (Davis v. Drew, 111 S.W. 869; Schilling Bros. v. Grain Co., 116 N.W. 563; Ptacek v. Pisa, 231 Ill. 522.) One suing on an express contract cannot recover on quantum meriut. (Bennett v. Burkhalter, 57 S.E. 231 (Ga.); Basewood v. West, 101 S.W. 610 (Mo.); Kineon v. Rich, 100 S.W. 249 (Ky.).) The affidavit of Bryson relating to newly discovered evidence unknown to defendant until after the trial is material; if introduced at a new trial, it will undoubtedly produce a different result, and it is error to deny the application for a new trial on this ground. (Nolan v. McCue, 92 Kans. 870, 142 P. 958; Buford v. Benton, 144 P. 349.) The verdict is contrary to the instructions of the court and is therefore contrary to law and should be set aside. (Melzner v. Raven Copper Co., 47 Mont. 351, 132 P. 552; Wallace v. Weaver, 47 Mont. 437, 133 P. 1099; Multnomah County v. Towing Co., 89 P. 389 (Ore.); Chicago R. I. & P. Ry. Co. v. Groves, 93 P. 755.) The verdict and judgment not being sustained by law or evidence in the case, a new trial should be granted.

F. E. Anderson, for defendant in error.

An examination of the record will show that there is abundant evidence to sustain the verdict. There can be no objection to jurors acting freely upon the result of the average sense of the jury as to the amount of recovery and no impropriety in a jury resorting to this method for the purpose of arriving at an agreement. (Watson v. Reid, 46 P. 647-48.) The evidence does, in fact, show, as is alleged in the petition, a verbal agreement between the parties for the performance of services; certain notes made by Beaumier to the Case Manufacturing Company are referred to in the evidence; these notes were given by Beaumier in connection with the purchase of the traction engine and it was shown that Bryson's earnings were to be applied first upon these notes, secondly an allowance to Mrs. Beaumier of $ 50.00 per month, and thirdly advances to Beaumier for money for tobacco and other necessities; but this did not supersede the original agreement from the performance of services. No variance between the allegations and proof is material unless the adverse party has been misled thereby; when the variance is not material, the court may direct the facts to be found in accordance with the evidence and may order an amendment without costs. Failure of proof is not a variance. (Sections 4591-4593 Comp. Stats. 1910; Culin v. McKay, 7 Wyo. 42, 49 P. 473; C. B. & Q. R. v. Pollock, 16 Wyo. 321, 93 P. 847.) The allegations of plaintiff's petition were proven in their general scope and meaning. (Hoffman v. Murphy, 96 P. 780; Emerson v. Burnett, 52 P. 752; Peasley v. Hart, 4 P. 537; Ahern v. Telephone & Telegraph Co., 33 P. 403; Newell et al. v. National Advertising Co., 89 P. 792; Burgess v. Helm, 51 P. 1025.) As to the claim of newly discovered evidence, it was shown that the conversations and agreements occurring in the presence of Bryson were testified to by defendant below, plaintiff in error, first, and brought out upon his theory of the case. Defendant knew that Bryson was present and had knowledge of the transaction, but took no steps to communicate with him prior to the trial. The same facts were testified to by J. H. White and others, which went to the jury for their consideration. There is no valid ground for a new trial on the ground of newly discovered evidence. It is evident that the jury found that the contracts made in March, 1910, and May, 1911, were not obtained; that no partnership existed in the James Lake work and no loss was proven. There is really nothing to show that the instructions of the court were disregarded, and we think the verdict and judgment of the court below should not be disturbed.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, JUSTICE.

In this case, in the district court, Beaumier was plaintiff, and King was defendant. Plaintiff's second amended petition, upon which the cause was tried, contained eight counts or separate causes of action. In the first count he claimed $ 400 for threshing 10,000 bushels of oats for defendant in 1909, which with interest amounted to $ 502.20. In the second count he claimed $ 84.00 for threshing 2,100 bushels of oats in 1910, which with interest amounted to $ 106.10. In the third count he claimed $ 362.04 for threshing 9,051 bushels of oats in 1911, amounting with interest to $ 417.00. In the fourth count he claimed $ 210 for 60 days' labor in January and February, 1908, at $ 3.50 per day, amounting with interest to $ 312.20. In the fifth count he alleged that about March 15, 1910, plaintiff and defendant entered into a verbal agreement by which defendant agreed to hire plaintiff to work for defendant at $ 3.50 per day, and to hire a traction engine belonging to plaintiff at $ 10.00 per day. That pursuant to said agreement he worked for defendant during the year 1910 a total of 235 days, for which he claimed $ 822.50, which with interest amounted to $ 1,039.15. In the sixth count he alleged that about May 5, 1911, plaintiff and defendant entered into a verbal agreement wherein defendant agreed to hire plaintiff and his said engine at the same price as in 1910; and that he so worked in 1911 a total of 158 days, for which he claimed $ 553.00, which with interest amounted to $ 661.15. In the seventh count he alleged that pursuant to the agreement of March, 1910, defendant used said traction engine 152 days in 1910, for which he claimed $ 1,520.00, which with interest amounted to $ 1,925.30. In the eighth count he claimed for the use of said engine for 72 days in 1911, $ 720.00, which with interest amounted to $ 861.12. The total amount claimed being $ 5,824.22, less an admitted credit of $ 1,765.89.

The answer contained first, a denial of the allegations of each count in the petition; and second, alleged as a counterclaim, "That said plaintiff and defendant entered into a copartnership arrangement to construct certain work which is commonly known and called the Lake James Irrigation System. That said plaintiff, through mismanagement and misappropriation of funds, damaged said defendant in the sum of $ 5,000.00." For which sum he prayed judgment against plaintiff.

Plaintiff by reply denied the allegations of the counterclaim.

The case was tried to a jury, which returned a verdict in favor of the plaintiff for the amount claimed in each of the first four counts of the petition, and in his favor for $ 295.58 on each of the last four counts, and finding for plaintiff in the total sum of $ 2,519.72. It is contended by counsel for plaintiff in error that the verdict is contrary to the evidence, is not supported by sufficient evidence, and that the verdicts on the last four counts are quotient verdicts. The only evidence of the latter contention is the inference which might be drawn from the fact that the amount awarded by the jury on each of said counts is the same. Plaintiff testified that he worked the number of days in each of the years 1910 and 1911, for which he claims, and also to the days his engine was used, and that he kept the time from day to day in a book which was introduced in evidence. That the agreed price was $ 3.50 per day for his services, and $ 10.00 per day for...

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6 cases
  • Smith v. Smith
    • United States
    • Wyoming Supreme Court
    • 11 d2 Setembro d2 1928
    ...of facts, the instruction, or where based upon conjecture, surmise or insufficient proof, Wolbol v. Steinhoff, 25 Wyo. 237; King v. Baumier, 26 Wyo. 35; R. R. Co. Page, 274 U.S. 65. The testimony of Samson, that in his opinion the endorsements were not made at intervals, but at one time, wa......
  • Lutyen v. Ritchie
    • United States
    • Idaho Supreme Court
    • 5 d4 Julho d4 1923
    ... ... but it must be sufficient to support the particular verdict ... and judgment rendered. King v. C. C. Bendell Comm ... Co., 7 Colo. App. 507, 44 P. 377; Meyer v ... Shamp, 51 Neb. 424, 71 N.W. 57." King v ... Beaumier, 26 Wyo. 35, 174 ... ...
  • Caravelis v. Cacavas
    • United States
    • Idaho Supreme Court
    • 1 d4 Novembro d4 1923
    ... ... 214, 192 P. 1062, 193 P. 927; Lee v ... Braggman, 39 S.D. 175, 162 N.W. 788; Johnson v ... Commonwealth, 126 Va. 770, 101 S.E. 341; King v ... Beaumier, 26 Wyo. 35, 174 P. 612; Spencer v. State (Tex ... Cr.), 153 S.W. 858, 46 L. R. A., N. S., 911.) ... Jones, ... Pomeroy ... ...
  • In re Claim of Hamilton
    • United States
    • Wyoming Supreme Court
    • 23 d2 Novembro d2 1943
    ... ... what constitutes newly discovered evidence: Bosler v ... Cobler, 14 Wyo. 423, 84 P. 895; Hardin v. Card, ... 15 Wyo. 217, 88 P. 217; King v. Beaumire, 26 Wyo ... 35, 174 P. 612. Merely cumulative evidence is not a ground ... for the granting of a new trial: Link v. Union Pacific ... ...
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