Nelson v. Johnson

• Citation: 150 P. 762,23 Wyo. 319
• Decision Date: 27 July 1915
• Docket Number: 824
• Parties: NELSON v. JOHNSON ET AL
• Court: United States State Supreme Court of Wyoming

150 P. 762

23 Wyo. 319

NELSON v. JOHNSON ET AL

No. 824

Supreme Court of Wyoming

July 27, 1915

ERROR to the District Court, Carbon County; HON. VOLNEY J. TIDBALL Judge.

Action by C. A. Johnson and D. A. McLean against August Nelson to recover a balance on account in connection with a building contract. Plaintiffs were awarded judgment and defendant brings error. The facts are stated in the opinion.

Affirmed.

N. R Greenfield, for plaintiff in error.

There was no evidence introduced in support of plaintiff's claim for extras other than a mere expression of opinion. We concede that a failure to object to the competency of this class of testimony is a waiver of its competency, but it is not a waiver of the right to question its legal effect or its sufficiency to support the verdict. (9 Enc. of Evi. 113, and cases cited.) A fact cannot be considered as proved where all there is before the court is the conclusion of the witness upon the point in issue. (14 Enc. of Evi. 102.) Plaintiffs failed to make out a case against the defendant. The testimony of Mr. McLean as to the contract price of the house and the nature and value of the extras furnished considered in connection with the testimony of Mr. Nelson, which is uncontradicted, would show but $ 6.09 due plaintiffs. The verdict of the jury is excessive and not supported by the evidence and is contrary to law, and in any event, grossly excessive and should be set aside and a new trial awarded defendant.

F. E Anderson, for defendants in error.

The reply was filed out of time, but there was an agreement that it should be considered. The issues in the case turn largely upon questions of fact. The only question presented for review in the Supreme Court is whether the verdict was sustained by the evidence. The rule is that where the court below has overruled a motion for a new trial based upon the insufficiency of the evidence, the ruling will not be disturbed on appeal. (Kester v. Wager, 22 Wyo. 512, citing the case of Dewey v. Chicago Railroad Co., 31 Ia. 373.) The above authority would seem to be decisive of the present case.

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

OPINION

SCOTT, JUSTICE.

Johnson and McLean obtained a verdict in the District Court of Carbon County against Nelson for the sum of $ 303.91, upon which verdict judgment was rendered in their favor for that amount and $ 91.15 costs. Nelson brings error. It is alleged in the amended petition that early in September, 1910, the plaintiffs entered into a written contract to and with Nelson to construct a residence for him according to certain plans and specifications; that they were to furnish all materials (excepting dimension lumber and sheeting, flooring, ceiling and cornice lumber), and pay all freight, but that Nelson was to furnish all sand and gravel, and in consideration Nelson agreed to pay plaintiffs $ 3,000 as follows: $ 1,000 when concrete walls were in place, $ 1,000 when building was ready for plaster, and $ 1,000 when building was completed and accepted. It is alleged that the plaintiffs completed the building with the exception of applying and spreading the outside plaster, which was postponed owing to the inclement weather. It is further alleged that defendant was unable to furnish certain material and that plaintiffs furnished them; also labor, material and extras for change in plans, railroad freight, etc., in all amounting to $ 466.11, over and above three thousand dollars, the original contract price, as shown by an itemized bill exhibited with the petition, for which they demand judgment.

The defendant in his answer admitted the contract, the correctness of the itemized statement in some particulars and alleged that had the house been built according to contract his liability would have been $ 3,257.50, and further alleged for a defense and counter-claim that the house was not built in the time agreed upon, alleging damage of $ 400 therefor, and that the house was not constructed in a work-manlike manner and he claimed that he was further damaged in the sum of $ 1,500 for such faulty construction. He also claimed credits according to an itemized statement appearing as an exhibit to his answer more than sufficient to pay the entire claim of plaintiffs, and also alleged that plaintiffs abandoned and never completed the contract and used poor and unsuitable material in constructing the house to his damage. The reply denied the allegations in the answer.

It is contended, first, that the verdict is excessive, and second, that the evidence is insufficient to support any verdict against the defendant. For convenience these questions may be considered together. The issue was upon an account consisting of certain charges and credits by defendants in error under the building contract and the amount of credits to which plaintiff in error claimed he was entitled.

The evidence upon the part of the plaintiffs tends to show that upon the consent...