Metcalf v. Barnard-Curtiss Co.

• Decision Date: 15 April 1947
• Docket Number: 8704.
• Citation: 180 P.2d 263,120 Mont. 50
• Parties: METCALF v. BARNARD-CURTISS CO.
• Court: Montana Supreme Court

180 P.2d 263

120 Mont. 50

METCALF v. BARNARD-CURTISS CO.

No. 8704.

Supreme Court of Montana

April 15, 1947

As Modified on Denial of Rehearing May 8, 1947.

Appeal from District Court, Third Judicial District, Granite County William R. Taylor, Presiding Judge.

Action by C. A. Metcalf against the Barnard-Curtiss Company, a corporation, to recover a balance allegedly due for work performed by plaintiff under a contract for clearing timber and brush. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Ralph J. Anderson and Albert C. Angstman, both of Helena, and W. T. Boone, of Missoula, for appellant.

Harlow Pease, of Butte, for respondent.

CHOATE Justice.

The parties to this action will be hereinafter designated either by name or as plaintiff and defendant.

Defendant appeals from a judgment awarded plaintiff in the district court of Granite county, Montana, in the amount of $3,686.23 in an action brought against the defendant, a construction company, to recover a balance due for work allegedly performed by plaintiff under a contract for clearing the timber and brush from a reservoir site and grubbing stumps from a part of said land.

Plaintiff first brought action in the district court of Granite county to recover a total of $4,022.10. That action involved the same clearing and grubbing for which recovery is sought herein, together with other claims not involved in the present suit. Plaintiff's first action was removed by defendant to the United States district court at Missoula. While this earlier suit was pending in the district court one Ernest Maehl filed an action against defendant in the district court of Granite county in which he sought to recover for substantially the same clearing and grubbing of land for which plaintiff was seeking recovery in his action. Maehl's action was likewise removed by defendant to the United States district court at Missoula. Thereafter, Metcalf dismissed his action which had been removed to the United States district court, and instituted two separate actions, one of which is immaterial to this appeal and the other of which (case No. 2146 of the district court of Granite county) is the action now before this court.

Maehl's suit, which had been removed to the United States district court at Missoula, was tried in that court and resulted in a judgment in favor of Maehl in the amount of $3,368.91 for the clearing of brush and timber and other claims involved therein. Defendant appealed to the United States circuit court of appeals where the judgment was affirmed ( Barnard-Curtiss Co. v. Maehl, 9 Cir., 117 F.2d 7) and was subsequently paid by defendant. All the area upon which Metcalf seeks recovery in this action for clearing and grubbing timber is embraced within the area on which Maehl brought suit and recovered judgment as above stated.

Defendant assigns error on several grounds, the chief of which is the contention that plaintiff testified at the trial of the Maehl case that he and Maehl were partners in the doing of the work for which plaintiff now seeks to recover on his own account and that therefore plaintiff is estopped from now denying the existence of such partnership and that since recovery has been had by one of two partners, the present action to recover by the other partner cannot be maintained. We will therefore examine plaintiff's testimony in the Maehl case and in the case at bar.

Plaintiff's testimony in case at bar. Metcalf testified that in the early fall of the year 1936 he had a conversation with James A. Barnard. The latter wanted to know 'what I thought it was worth to clear' the timber on a job upon which defendant was considering submitting a bid to the water conservation board. 'I told him I thought it was worth $100 an acre to clear it and that I would contract it at that.' Around the first of September (1936), Metcalf had another conversation with James Barnard. The latter said 'they had gotten the bid and wanted to know if I wanted to contract it. I said 'yes, I would like to contract it for about 100 acres.' He said, 'All right, can I depend on you?' and I said, 'Yes, you can." On the 6th of October (1936), witness had another conversation with Bob and James Barnard. They wanted to know when witness could get started. Metcalf said he could get started 'tommorrow morning' on condition that he could use certain extra men and tools belonging to defendant. Right at that time the Barnard brothers told him, 'You have the contract, Mr. Metcalf.' At that time also, the defendant agreed to carry Metcalf on its payroll at 'six bits an hour' and also to take care of Metcalf's payroll, these items to be charged back to his account. They also volunteered to keep the books. Plaintiff went to work the next day with a crew of men, cutting and burning timber and finished the contract on the 18th of January (1937). During the cutting and burning operation Metcalf had a conversation with Bob Barnard about doing some grubbing to make a borrow pit. This was within the area that had been assigned to Metcalf of clear. Metcalf agreed to do this grubbing and Bob Barnard said 'Certainly, we will make that all right with you.' This grubbing was done in the month of November in the midst of the clearing operation. It is stipulated in this action that the area which plaintiff grubbed for the borrow pit was nine and one-half acres and that the total area which Metcalf was to clear was 99.88 acres. No agreement was had as to payment for the grubbing except that defendant would 'make that all right.' Witness testified that he had an agreement for the clearing and burning at $100 an acre, and a verbal agreement to pay the reasonable value of the grubbing operation which covered nine and one-half acres. Metcalf alleged in his complaint that the reasonable value of clearing, burning and grubbing the timber upon the nine and one-half acres was $1,425, which would amount to $150 per acre. On the witness stand Metcalf testified to a valuation of $225 per acre for said work but no attempt was made to amend the complaint to recover more than the $150 an acre, aggregating $1,425 for said work.

On cross-examination Metcalf testified that in the year 1935 a conversation had been had between Jim Barnard, Maehl and himself. This was before defendant had made a bid on the dam project. In this conversation Barnard asked Metcalf and Maehl if they would go up and look at the timber on the reservoir site and said he would like an estimate as to what it was worth to cut it. On the following Sunday, Metcalf, Maehl and Bob Barnard went up and looked at the timber. Witness testified that 'we,' referring to himself and Maehl, told Barnard they thought it could be done for $100 an acre and that 'he and Maehl would be willing to take a contract at $100 an acre.' Defendant did not get the contract for the dam project from the state water conservation board that year. Accordingly the letting was readvertised the following year of 1936. Prior to the letting in 1936, witness testified that Barnard again came to him and wanted to know if he could do that work for $100 an acre and that witness said 'Yes, I thought so.' That conversation was probably in September. Metcalf testified it was then agreed that if the contract was let to the Barnard-Curtiss Company by the water conservation board, a contract in regard to the clearing would be given to him at $100 an acre. It will be observed from the foregoing testimony that at the trial of the case at bar, plaintiff expressly and consistently testified that the contract both for the cutting and burning and for grubbing a borrow pit was made by defendant company with him in 1936 and that Maehl was not a party to that contract.

Testimony in the Maehl case. Plaintiff's testimony on the trial of the Maehl case in the United States district court is before us, having been introduced as defendant's exhibit C in the present action. Plaintiff was called as a witness for the defendant and the court permitted counsel to treat him as an hostile witness whose interests were adverse to those of both parties to the Maehl case. His testimony in that case was as follows: Some time in 1935 Metcalf, in company with Bob Barnard and Jim Barnard and Maehl, went up to the Flint Creek dam site (upon which defendant was considering making a bid for the construction of a dam) to look at the timber, figuring on an estimate of what 'we' could cut it for under a contract. At that time Jim Barnard talked with Metcalf and Maehl about cutting the timber and wanted to know how much 'we' could cut the timber for. By 'we' Barnard had reference to 'Mr. Maehl and I.' This conversation was directed to both Metcalf and Maehl. In this conversation Metcalf and Maehl agreed that 'we could cut it for $100 an acre' and agreed 'to take the contract for that clearing at that price.'

There were several conversations thereafter between Maehl and Metcalf 'about when the job was going to be let and of trying to get a contract on it.' The first of those conversations was in 1935 when they were advertising for the job. Later conversations were had at various times including both the first time and the second time when they were advertising the job. In response to questions by the court Metcalf testified as follows:

'The Court: * * * Well how about it Mr. Metcalf, were you claiming for cutting the same timber that Mr. Maehl is claiming? The Witness: Yes.

The Court: The same identical land or part of it? The Witness: Most of it yes.

The Court: Most of it is the same? The Witness: Yes.

The Court: What, if any effect, has that upon your mind, with reference to Maehl's claim? The Witness: Nothing only just as I say it.

The Court: Well were you and he operating together at that...