Lackman v. Simpson

• Citation: 129 P. 325,46 Mont. 518
• Parties: LACKMAN v. SIMPSON ET AL.
• Decision Date: 20 January 1913
• Court: United States State Supreme Court of Montana

129 P. 325

46 Mont. 518

LACKMAN v. SIMPSON ET AL.

Supreme Court of Montana

January 20, 1913

Appeal from District Court, Carbon County; Sydney Fox, Judge.

Action by Henry Lackman against Edgar Simpson, Harry Simpson, and David Simpson, partners doing business under the name of Simpson Bros. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

W. L A. Calder, of Laurel, and Hathhorn & Brown, of Billings, for appellant.

John G Skinner, of Red Lodge, for respondent.

HOLLOWAY J.

This action was brought to recover $760 alleged to be a balance due for work and labor performed by the plaintiff for the defendants under a written contract. The contract is made a part of the complaint. It discloses that the defendants, who own a ranch in Big Horn county, Wyo., employed the plaintiff to prepare the ground, seed, cultivate, and harvest sugar beets on 42 1/2 acres of their lands during the season of 1909. The defendants were to furnish the seed, tools, work stock, and feed, and the plaintiff was to perform the labor. It was left optional with the defendants whether the plaintiff should be required to top any or all of the beets. The contract specifies somewhat in detail the character of work required of the plaintiff, but it also contains these provisions: (1) That the work shall be done "in a good and farmer like manner and according to the rules of husbandry practiced in the neighborhood, reference being had to the nature of the crop"; and (2) "said first parties [[defendants] shall be the exclusive judges of the efficiency of the work to be performed by the second party [plaintiff] herein." The defendants agreed to pay the plaintiff $35 per acre for beets which were topped, and $31 for those not topped. Plaintiff alleges that he fully performed the contract in all things by him to be performed that he topped the beets from 20 acres, and at defendants' request did not top the remainder; that defendants paid him $637.50, and refused to pay him the balance. The answer of the defendants admits the execution of the contract; that at their request plaintiff topped only 20 acres of the beets; that they paid plaintiff $637.50; and that they refused to pay him anything more. They deny that plaintiff performed the contract according to its terms, and further deny that there is anything due to him. They plead a counterclaim for damages, and therein allege that plaintiff "so negligently cultivated, tilled, blocked, weeded, and irrigated said crop, and neglected and delayed the necessary labor thereon until said crop was not tilled or matured in season, thereby causing a partial failure in said crop of more than 180 tons, which defendants would have otherwise harvested and received the benefit thereof to their damage in the sum of $810." The affirmative allegations of the answer were put in issue by reply. The cause was brought to trial before the court sitting with a jury, and plaintiff introduced evidence tending to show performance of the contract on his part, and other evidence to which reference will be made hereafter. At the close of plaintiff's case, the trial court directed a nonsuit, and it is from the judgment entered in favor of the defendants and from an order denying him a new trial that plaintiff has appealed.

Since the cause must be remanded for a new trial, we shall not discuss the evidence in detail. In passing we may say we are inclined to the opinion that the evidence is sufficient to make out a prima facie case of performance according to the terms of the contract, but whether or not that be so is not of consequence now.

The contract provides that plaintiff shall be paid for his work as follows: $5 per acre when the beets are seeded, $5 per acre when the beets are thinned and ready to be irrigated, $5 per acre when the beets are ready to be dug, and the balance when the beets are harvested; and plaintiff had fully performed all the conditions of the contract by him to be performed. Without objection, plaintiff introduced evidence to the effect that defendants were present at all times while the work was in progress; that they observed the work done by the plaintiff and the manner of its performance; that they made no objection whatever to it, and without objection made payment of each of the first three installments substantially as it became due under the contract; and that it was only after plaintiff had completed all of his work under the contract that defendants refused to make final payment, and then only on the ground that plaintiff had not thinned the beets early enough in the thinning season. Under the terms of the contract, the beets were to be thinned before they were irrigated and before the second payment to the plaintiff became...