Pike & Richardson v. City of Sheridan

• Decision Date: 14 April 1914
• Docket Number: 771
• Citation: 22 Wyo. 312,139 P. 912
• Parties: PIKE & RICHARDSON ET AL. v. CITY OF SHERIDAN
• Court: Wyoming Supreme Court

139 P. 912

22 Wyo. 312

PIKE & RICHARDSON ET AL. v. CITY OF SHERIDAN

No. 771

Supreme Court of Wyoming

April 14, 1914

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.

The action was brought in the District Court by Pike &amp Richardson, a co-partnership, and one O. H. Richardson against the City of Sheridan for the recovery of a money judgment. From a judgment for defendant the plaintiffs brought error. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

Cadle & Byrd, for plaintiffs in error.

Under the pleadings there was an issue of fact to be tried. After the discharge of the jury because unable to agree on a verdict, the statute provides for a retrial of the cause. (Comp. Stat. 1910, Secs. 4504, 4505). Pleadings may then be amended and additional evidence offered. (Marshall v. Kinney, 1 Wyo. 581). While a cause may be taken from the jury where there has been an entire failure of proof, no such action was taken in this case. The defendant demanded an instructed verdict and it was denied. The case, therefore, stood exactly as though it had never been submitted to a jury, and the plaintiff's demand for jury trial remained in force. The motion for judgment attacked the pleadings as well as the evidence. But the cause was commenced in the justice court where no pleadings are required. (Batchelor v. Kirkbride, 26 F. 899; Davis v. Baddires, 95 Ala. 348, 10 So. 422; Adams v. Cosby, 48 Ind. 153; Neenan v. Donoghue, 50 Mo. 493; Yeates v. Ballentine, 56 Mo. 530; Densmere v. Livingston Co., 60 Mo. 241; Bean v. Miller, 69 Mo. 384; Gillis v. Cobe, 177 Mass. 584). It is not necessary to plead specially each condition precedent and compliance therewith or an excuse for non-compliance, but a general allegation that the plaintiff has performed on his part is sufficient to authorize proof of excusable non-compliance with a condition requiring an architect's certificate before payment. (Smith v. Wilmon, 52 N.Y.S. 513, 167 N.Y. 237, 60 N.E. 419; Louisville Tr. Co. v. Louisville F. C. Co., 57 S.W. 506; 42 Ore. 578; 72 P. 126). In order to effect a settlement, the minds of the parties must make a new contract. The evidence in the case as to settlement was insufficient.

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

OPINION

BEARD, JUSTICE.

This action was brought by the plaintiffs in error against the defendant in error, in justice court, to recover a balance of $ 200 alleged to be due on a contract for the erection of a City Hall for the defendant city. The case was tried three times in that court to three different juries, the first two being unable to agree upon a verdict, and the third returned a verdict in favor of the plaintiffs for the amount claimed, upon which judgment was entered, and defendant appealed the cause to the District Court. The cause was there tried to a jury June 23, 1913. At the close of the evidence the defendant requested the court to instruct the jury to return a verdict in favor of defendant, which request was denied. The jury failed to agree upon a verdict and was on the same day discharged by the court. On the same day defendant filed a motion "for judgment in favor of defendant upon the pleadings and the evidence." Nothing further appears to have been done in the case until July 15, 1913, when the following judgment was entered: "This cause coming on for hearing on the fifteenth day of July, A. D. 1913, being one of the regular days of the June, 1913, term of said court, upon the motion of defendant for judgment in favor of defendant upon the pleadings and evidence in said cause, and the said motion having been duly considered by the court, and it appearing to the court that said motion ought to be sustained and judgment ought to be rendered in said cause in favor of the defendant, and it appearing further that defendant asks to amend its answer to the petition in said cause so that said amended answer will show a settlement between the defendant and the plaintiffs as disclosed by the evidence at the trial of said cause, and leave of court having been given to file said amended answer and said amended answer having been filed in accordance with the order of the court; It is...