Stinson v. Rourke

• Decision Date: 24 April 1896
• Citation: Stinson v. Rourke, 4 Idaho 765, 46 P. 445 (Idaho 1896)
• Parties: STINSON v. ROURKE
• Court: Idaho Supreme Court

46 P. 445

4 Idaho 765

STINSON v. ROURKE

Supreme Court of Idaho

April 24, 1896

ALLEGATIONS-PROOF-INSTRUCTIONS-NEW TRIAL.-Where the allegations of the complaint are supported by the proofs, and the verdict and judgment are in accordance with both, the supreme court will not grant a new trial because an instruction was given which, although correct, as an abstract principle of law, was not applicable to the case.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Judgment affirmed, with costs to respondent.

James E. Babb, for Appellant.

The court erred in giving to the jury the following instructions to wit: "You are further instructed that while one person cannot make another his debtor without the consent of the latter, or recover for services rendered for another without a request, express or implied, yet, if one stands by and sees another doing work for him, beneficial in its nature, and overlooks it as it progresses and does not interfere to prevent or forbid it, but appropriates such labor to his own use, then, in the absence of a special contract, a request will be implied to pay for the work what the same is reasonably worth, unless it expressly appears from the evidence that it was done as a gift or gratuity. And you are further instructed that when one person labors for another with his knowledge and consent, and the latter voluntarily takes the benefit of such labor, then the law will presume that the laborer is entitled to have what his services were reasonably worth." The instruction is not applicable to a suit against a crop mortgagee for wages in harvesting the crop. That instruction would be applicable in such an action against the owner of the crop, because he would be presumed to know that the work was being done for him, and in overlooking the work as it progressed he could be supposed by the laborers to be acting in no capacity other than as proprietor adopting the labor. (De Wolf v Chicago, 26 Ill. 443; Tascott v. Grace, 12 Ill.App. 611; Day v. Caton, 119 Mass. 513, 20 Am Rep. 347.) The instruction is based on the principles of estoppel and waiver, and a party's conduct to create an estoppel or waiver must be "inconsistent with any other explanation." (B. & M. R. R. Co. v. Boestler, 15 Iowa 558; Grey v. Blanchard, 8 Pick. 292; Jackson v. Crysler, 1 Johns. Cas. 125; Lawrence v. Gifford, 17 Pick. 336.) The instruction was erroneous in that it authorized a recovery on implied contracts when the complaint was based only on express contracts. (Rockwell Stock etc. Co. v. Castroni, 6 Colo. App. 528, 42 P. 182.)

S. S. Denning and James W. Reid, for Respondent.

There is no allegation in the complaint in any of the causes of action that the contract was either an express or an implied contract, but the allegation in each of the causes of action set forth that the defendant by his agent promised to pay him the sum of dollars. We maintain that under this allegation we could prove the actual state of the facts as they existed, and in so doing could either prove an express or an implied contract to pay. We maintain that it is only needful for the pleader to state the facts out of which his cause of action grows, and, this being proven, he may recover whether he has alleged a promise by the defendant or has omitted to state any. (Rockwell Stock etc. Co. v. Castroni, 6 Colo. App. 528, 42 P. 182; Hirst v. Litchfield, 39 N.Y. 377; Sussdroff v. Schmidt, 55 N.Y. 319; Kerstetter v. Raymond, 10 Ind. 199; Green v. Gilbert, 21 Wis. 401; Pomeroy's Rights and Remedies, sec. 543, et seq.; Lawson's Rights and Remedies, sec. 3696, p. 5765.)

Thomas Stinson, plaintiff, brings suit against T. F. Rourke, defendant, for work and labor in threshing wheat, demanding the sum of $ 330.36, and also as the assignee of eleven other parties who claim to have performed work and labor for the defendant in harvesting and threshing said grain, amounting in the aggregate, together with the claim of Stinson himself, to the sum of $ 1,078.01. The defendant demurred to the complaint, which demurrer was overruled by the court, and defendant filed his answer, denying each and every allegation in the complaint. The cause was tried before the court and a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 1,040.06. Defendant moved the court for a new trial, which was denied. Thereupon he appealed to this court, both from the judgment and from the order overruling motion for new trial. Affirmed.

MORGAN, C. J. Sullivan and Huston, JJ., concur.

OPINION

MORGAN, C. J.

(After Stating the Facts).--The witnesses, being assignors of the claims upon which suit is brought, testified that one G. V. Hamilton, who claimed to be the agent of Rourke, the defendant, came upon the ground where the wheat was grown, on the Indian reservation in Latah county, Idaho and employed them to work in the harvesting and threshing of the wheat raised by Bergevin Brothers & Martin, and upon which the defendant held a mortgage. As evidence of his right to make contracts for the defendant, Rourke, Hamilton exhibited a letter of attorney from the defendant, of the following tenor:

"To Whom Handed: This is to certify that I have this day appointed the bearer, George V. Hamilton, my agent for the purpose of looking after and handling, and taking such action as he may deem best and proper in the matter of the Bergevin Brothers & Martin crop of wheat, on the Nez Perces Indian reservation, near Genesee, Idaho on which said crop I have a mortgage. Any arrangements or contracts entered into by him in connection therewith will be protected and enforced by me. He has full power and authority to make any arrangements or contracts he may deem best in the premises.

"September 6, 1895.

(Signed) "T. F. ROURKE,

"Pendleton, Oregon."

A copy of this letter was produced by Hamilton, and put in evidence in this case. It will be seen that this letter gives Hamilton full power to act for defendant in the premises, and in it Rourke agrees to protect and enforce any and all arrangements and contracts entered into by Hamilton, for defendant, in the matter of harvesting and securing the said crop of wheat. The evidence shows that, before the appearance of Hamilton, one Jackson, who had taken the contract for harvesting the wheat from Bergevin Brothers & Martin, had ceased the work of harvesting, for the reason that Bergevin Brothers & Martin could no longer furnish the means to pay for the harvesting and threshing of the grain. The men, being fearful of losing the pay for their work, had quit also. Upon the arrival of Hamilton, he shows this letter of attorney from Rourke to the men who had been engaged in the harvesting of the crop, and to others whom he wished to engage to assist in the work, and represented to these men that he had full power to act for Rourke in the harvesting of the grain; that thereafter there would be no trouble about the money for paying the men for their work. Upon these representations of Hamilton being made to these men, and to parties whom he desired to employ to go upon the ground and thresh the wheat, work was again commenced. The men testified that Hamilton, in person, employed each one of them, at a stipulated price, to go on and perform this work; also agreed with the threshers upon the amount they were to receive per bushel for threshing the grain; stating also to them that the money was ready as soon as the work was done. It is true that Hamilton, in his testimony, denied making special contracts with these men, or any of them; but the evidence that he did make these contracts, and representations to the men, is overwhelming, and, it seems, was not doubted at all by the jury, and certainly is not by the court. There can be no question of the fact that Hamilton employed these men to do this work, and also that he represented to them that he had the money to pay them, and that he was the agent of Rourke, and obtained the money from Rourke.

The appellant relies specially upon the following assignment of errors: "The court...