Pelikan v. Ridpath

• Decision Date: 01 December 1902
• Citation: Pelikan v. Ridpath, 8 Idaho 617, 71 P. 125 (Idaho 1902)
• Parties: PELIKAN v. RIDPATH
• Court: Idaho Supreme Court

71 P. 125

8 Idaho 617

PELIKAN v. RIDPATH

Supreme Court of Idaho

December 1, 1902

ALLEGATIONS OF COMPLAINT-EVIDENCE.-Where the evidence fails to establish the material allegations of the complaint, the judgment will be reversed.

(Syllabus by the court.)

APPEAL from District Court, Idaho County.

Reversed and remanded. Costs awarded to appellants.

Fogg &amp Nugent, for Appellants.

The first five specifications of particulars wherein the evidence is insufficient, briefly stated, are as follows: 1. No evidence of employment; 2. No request to perform service; 3. No knowledge by defendants that services were being performed in their behalf; 4. No knowledge by defendants that plaintiff was working for them in a particular employment for which he claimed wages; 5. No evidence that the defendants received any benefit. To authorize compensation in the nature of quantum meruit there must be some proof of the reasonable value of the services rendered. (McColley v. Brabo, 33 F. 884.) This court has decided where the evidence relied upon to contradict the direct and positive testimony of the appellants' witnesses consisted entirely of the defendants' testimony and wherein defendants' testimony was unsatisfactory, and, as in this case, the respondent denied the conversation upon which the contract was founded only by the equivocal statements that he didn't remember, that there was no substantial conflict of the evidence and that the evidence being clearly against the verdict, the verdict should be reversed. (Idaho Mrcantile Co. v. Kalanquin, ante, p. 101, 66 P. 933.) When upon the whole evidence the verdict may be seen to be plainly unreasonable and unjust it should be set aside. (Metropolitan R. R. Co. v. Moore, 121 U.S. 558, 7 S.Ct. 1334, 30 L. ed. 1025; Smith v. Belshaw, 89 Cal. 430, 26 P. 834; In re Irvine's Estate, 102 Cal. 606, 36 P. 1013; Branson v. Caruthers, 49 Cal 374; Mattock v. Goughnour, 11 Mont. 265, 28 P. 301; Fuller v. Northern Pacific R. R., 2 N. Dak. 252, 50 N.W 359.)

J. F. Ailshie, for Respondent.

"If the facts alleged in the complaint are presumptively within the knowledge of defendant he must answer positively, and a denial upon information and belief will be treated as an evasion." (Curtis v. Richards & Vantine, 9 Cal. 38; Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621, and note; Loveland v. Garner, 74 Cal. 298, 15 P. 844; Swanholm v. Resser, 3 Idaho 476, 31 P. 804.) Where the facts are in dispute, or are involved in doubt, so that different men might honestly arrive at different conclusions from the same evidence, the decision of the questions thus presented belongs exclusively to the jury. (Colorado Coal etc. Co. v. John, 5 Colo. App. 213, 38 P. 399; Abbott's Civil Trial Brief, 387; Ainslie v. Printing Co., 1 Idaho 643; Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177; O'Connor v. Langdon, 3 Idaho 61, 26 P. 659; Van Buren v. McKinley, ante, p. 93, 66 P. 936; Idaho Mercantile Co. v. Kalanquin, ante p. 101, 66 P. 933.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

The facts are fully stated in the opinion.

SULLIVAN, J.

This is an action to recover the sum of $ 1,300 from the defendants, who are appellants here, on account of labor and services alleged to have been rendered for the defendants, as copartners, at their special instance and request, by the respondent, as a brewer, for a period of fifty-two weeks commencing October 1, 1899, and ending October 1, 1900, which services are alleged to be of the reasonable value of twenty-five dollars per week. The amended answer puts in issue the material allegations of the complaint. The cause was tried by the court with a jury, and verdict and judgment were given and entered in favor of the respondent for the amount claimed in the complaint. A motion for a new trial was denied, and this appeal is from the judgment and order overruling that motion. Numerous errors are assigned, on which a reversal of the judgment is asked.

I gather the following facts from the record: Some time in the spring of 1899, the defendants, who were residents of Spokane, state of Washington, at the solicitation of the plaintiff and one Rudersdorf furnished certain money for the purpose of building a brewery at Grangeville, Idaho. After making the arrangement to erect said brewery, said Rudersdorf and respondent, Pelikan, went to Grangeville, and proceeded to purchase land and erect a brewery thereon, and run the same until about the month of August, 1899. Said business has been very poorly managed, and accumulated an indebtedness of several thousand dollars. Such was the condition when C. B Dunning, Esq., an attorney at law of Spokane, Washington, went to Grangeville, as attorney for the appellants, Ridpath & Harris, to look into the business and adjust the indebtedness. When he arrived there he found the indebtedness much larger than he expected to find it, and informed the parties that they could go no further until he reported to Ridpath & Harris, and then and there closed down the brewery. The respondent said he thought, if he could run it, he could make some money--either buy it or lease it; and Dunning replied that if that was his opinion to go back with him to Spokane. He did go to Spokane, and there had a conference with appellant Ridpath. Respondent testified that he went to Spokane at the time referred to on his own account, and, on his arrival there, went to Ridpath's office to settle up with them, and to report how things were going on, and to see how things would go further. He testified, in part, as follows: "I made a settlement of my own salary as well as other things. . . . There was nothing said about salary, only I wanted money. . . . I don't remember that Mr. Ridpath told me that the brewery could never be opened on his behalf again, or that he wouldn't be responsible for a single dollar, or have the brewery run under his name or under his direction, nor that I made arrangements to go back and run the brewery on my own behalf. I don't remember that Mr. Ridpath mentioned that. . . . Neither Mr. Harris nor Mr. Ridpath told me to go back to the brewery and go to work at any time after I came to Spokane." It appears that Ridpath gave Mr. Dunning $ 300 for the purpose of paying some debts, and he gave it to respondent; and at that time, respondent testified, Dunning told him to go back and go to work. The evidence is undisputed, except as to time, that Ridpath & Harris entered into a contract with appellant to sell him said brewery. The appellants claim, and show by an overwhelming preponderance of evidence: That the arrangement or contract of sale was talked over while the appellant was in Spokane, the latter part of September, 1899. That at that time, in the conversation above referred to, the appellant Ridpath, respondent Pelikan, and a Mr. Dunning being present, Mr. Pelikan said that he thought the man who would run it (brewery) economically could make some money; that he had worked there six months, and had had no money, except some groceries and some things to live on, and that rightfully he ought to have about $ 600; that if they would pay him that sum, and sell him the brewery on easy payments, he could buy barley with the $ 600 during the winter, and get ready for the spring trade, and could buy the brewery and meet his obligations. Respondent said that he had a friend who had some money that he could get; that, if they would figure up the entire cost of the brewery--the money that had been paid out--he would take it, and pay $ 3,000 on the 1st of August, 1900, and the balance in $ 1,500 yearly payments. Appellant Ridpath replied that would suit him; that he (respondent) could have all the time asked for, and that, so far as he was concerned, he did not propose to have anything more to do with the running of the brewery in any shape or form, or assume any possible liability in any way; that he had had enough of that, but was perfectly willing to sell to respondent, and give him liberal terms. Respondent replied that those terms would suit him. Thereupon the respondent said that John B. Hess, of Spokane, was his attorney, and that he would see him and instruct him to prepare the contract, or "to go on with this," and that, as he (respondent) was in a hurry to get back to Grangeville, he would leave those matters with Mr. Hess to act on respondent's part. Appellant Ridpath replied that he would leave the matter, on his part, with Mr. Dunning, and that Dunning would see Hess, and...