Trogdon v. Hanson Sheep Co.

• Decision Date: 18 March 1914
• Parties: TROGDON v. HANSON SHEEP CO.
• Court: Montana Supreme Court

139 P. 792

49 Mont. 1

TROGDON v. HANSON SHEEP CO.

Supreme Court of Montana

March 18, 1914

Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.

Action by Effie Trogdon against the Hanson Sheep Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

Loud Collins, Brown, Campbell & Wood, of Billings, for appellant.

W. R Swank and M. J. Lamb, both of Billings, for respondent.

HOLLOWAY J.

For some time prior to October 1, 1907, A. S. Hanson was engaged in the sheep business in Yellowstone county. Nathan Trogdon was his foreman, and Trogdon's wife, this plaintiff cooked for the men employed. The two received as wages $75 per month and the living for their family. In July, 1907, Hanson and Trogdon entered into a contract by which Trogdon was to purchase a one-third interest in the business and continue as foreman at $75 per month. Nothing was said in the agreement about Mrs. Trogdon. The contract never went into effect, however, for a corporation--this defendant--was organized, which took over the business. Trogdon became the owner of one-third of the capital stock, and was made the secretary treasurer of the company. Hanson and his wife owned the remainder of the stock. Hanson was elected president, and Mrs. Hanson vice president. There was never but one meeting of the stockholders or directors held, and Mrs. Trogdon was not present at that time, and, so far as the record discloses, knew little, if anything, of what transpired. Trogdon was given a checkbook, and for more than three years acted as foreman, employing, paying, and discharging the help, and drawing for himself $75 per month. The contention of the plaintiff is that, about the time the corporation was organized, she had conversations with her husband and Mr. Hanson, in which she informed them that, if she worked for the company, she would expect compensation to herself, and that she was promised wages by them. The contention of the defendant is that Trogdon and his wife were to continue working for the company under the same arrangement which prevailed while they worked for Hanson, and that the $75 per month paid to Trogdon, together with the living for his family, constituted the compensation for both. After something more than four years had elapsed, Mrs. Trogdon demanded payment for the services which she had rendered to the company, and, when this was refused, she instituted this action by filing a complaint which counts upon a quantum meruit and also upon an express contract. The answer is a general denial and also an affirmative plea of payment. By an appropriate instruction, the trial court withdrew from the jury consideration of the second count of the complaint, and the cause was submitted on the quantum meruit count alone, resulting in a verdict and judgment for the plaintiff. The defendant has appealed from the judgment and from an order denying it a new trial.

There are 18 specifications of error in appellant's brief, but, of these, 9, 11, and 15 are not argued, and will be treated as waived or abandoned. Mette & Kanne Distilling Co. v. Lowrey, 39 Mont. 124, 101 P. 966; Watkins v. Watkins, 39 Mont. 367, 102 P. 860; Nelson v. Boston & Mont. Min. Co., 35 Mont. 223, 88 P. 785.

Specifications 5, 6, and 11 relate to rulings of the trial court upon the admission of evidence, but the record fails to disclose that any exception was saved in any one of these instances, and appellant will be deemed to have acquiesced in the decisions. State v. Tudor, 47 Mont. 185, 131 P. 632; State v. Biggs, 45 Mont. 400, 123 P. 410; Gehlert v. Quinn, 35 Mont. 451, 90 P. 168, 119 Am. St. Rep. 864.

Specifications 2, 3, and 4 challenge rulings of the trial court in admitting evidence tending to show authority in Nathan Trogdon to employ his wife and to charge the company for her wages. In limiting the jury to a consideration of the first count of plaintiff's complaint, the trial court specifically withdrew all of this evidence, so that no possible prejudice could have resulted, if any error occurred.

While a witness for the defendant, A. S. Hanson testified concerning the payment of $30 to this plaintiff, gave his version of the transaction, and stated that the amount was charged to Nathan Trogdon's account. He was then asked if he had the book of original entry, but an objection to the question was sustained, and error is predicated upon the ruling. There was not any offer of proof made, and it is impossible for us to determine whether any error was committed. We cannot tell whether the witness would have answered in the affirmative or negative; and this emphasizes the reason for the rule which has been repeated by this court so often, viz.: Where an objection to evidence is sustained, and the answer of the witness is not apparent, an offer of proof is necessary to enable the Supreme Court to review the ruling. Tague v. John Caplice Co., 28 Mont. 51, 72 P. 297; Frederick v. Hale, 42 Mont. 153, 112 P. 70; Taylor v. Malta Merc. Co., 47 Mont. 342, 132 P. 549.

A witness, Robinson, was called as an expert to give an opinion as to the value of the services which it is alleged Mrs Trogdon rendered to the defendant company. The witness had been present in the courtroom, and had heard Mr. and Mrs. Trogdon describe the work for which the plaintiff is seeking compensation. On cross-examination, he was asked whether...