Ulmer v. McDonnell
| Decision Date | 13 December 1902 |
| Docket Number | 6731 |
| Citation | 92 N.W. 482,11 N.D. 391 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks County; Fisk, J.
Action by William H. Ulmer against P. McDonnell. Judgment for plaintiff, and he appeals. Affirmed.
Affirmed.
Cochrane & Corliss, for appellant.
George A. Bangs, for respondent.
In this action, plaintiff has appealed from a judgment entered in the district court in his favor, and demands a trial anew in this court of the entire case. The complaint, for a first cause of action, states that in September, 1898, the defendant and plaintiff entered into an agreement whereby plaintiff agreed, out of materials to be furnished by himself, to manufacture, sell, and deliver to defendant on the cars at Grand Forks, N.D., 42,000 running feet of stone curbing, at the agreed price of 43 cents a foot; that under said agreement the plaintiff delivered to defendant, and defendant accepted, 26,656 feet of said stone curbing, worth at the agreed price, $ 11,462.08, and that on account of said sale and delivery the defendant has paid the sum of $ 9,470.60, and that the balance due plaintiff is $ 1,991.48. For a second cause of action, the complaint charges, in effect, that defendant has wrongfully refused to receive or accept any of said curbstone over and above said amount of 26,656 feet, despite the fact that plaintiff was able and willing to deliver the same, and has repeatedly offered to deliver the same, and that, by reason of the defendant's refusal to accept all of the stone so sold, plaintiff has been damaged to the amount of his prospective profit, which is alleged to have been 26 cents per foot on 15,344 feet. "Plaintiff further alleges that he is engaged in the business of manufacturing curbing and building stone; that the capacity of his plant is limited, and that, by reason of the large contract which he had taken to deliver to defendant the said curbing, he was compelled to enlarge his plant for the special purpose of filling the said contract, and was also compelled to decline to take other contracts during the seasons of 1898 and 1899; and that in consequence thereof the plaintiff was damaged in the sum of $ 4,000 through the failure of said defendant to perform said contract,"--and prays for judgment in the sum of $ 12,589.40, with interest and costs. Defendant answered the complaint, denying every allegation thereof, and, by way of counterclaim, defendant alleged: That in the month of September, 1898, the plaintiff and defendant entered into a contract whereby the defendant agreed to take from the cars in the city of Grand Forks, and to there set in place, any and all W. H. Ulmer Dunville sandstone curbing shipped by the plaintiff to the city of Grand Forks as curbing to be used in connection with the paving to be done in said city. That for such service the plaintiff promised and agreed to pay defendant the sum of 8 cents per lineal foot. That under said contract the defendant hauled and set in place 22,789.6 feet of said curbing, which services were of the agreed value of $ 1,822.92. That in addition to the above services, the defendant rendered the plaintiff the following services under said contract, reasonably worth the sums as hereinafter set forth, to-wit: Hauling 3,869.4 lineal feet from cars to street, at 2 cents per foot, $ 77.39; setting in place 1,764 lineal feet, at 6 cents per foot, $ 105.84; taking out and replacing curbing and repairing paving and back-filling 700 feet of curbing, at 15 cents per foot, $ 105.00; taking out 1,064 feet after being set, at 2 cents per foot, $ 21.92; taking up, hauling, and piling of all rejected curbing, 3,869.4 lineal at 4 cents per foot, $ 154.77; making, in all, a total sum of $ 2,287.84. That no part of said sum has been paid, save and except the sum of $ 2,154, and that there is now due to the defendant the sum of $ 133.84, for which sum the defendant demands judgment. Briefly stated, the plaintiff's claim is that he sold the 42,000 feet of curbing in question to the defendant at an agreed price of 43 cents per foot. The defendant, on the other hand, denies that he purchased any of said curbing, and alleges that his contract was simply to transport it from the cars, and set it in place on the streets of Grand Forks, for an agreed compensation of 8 cents per foot. The case was tried to the court without a jury. Evidence was offered in support of the allegations of the complaint and answer. No testimony was offered by plaintiff in rebuttal, as against the items of the defendant's counterclaim. The trial court found against the plaintiff, and held that the defendant's contract with plaintiff was one of employment, to take the stone from the cars and set it in place, as pleaded in the answer, and allowed to the defendant the sum of $ 1,822.92 for transporting and setting the stone in place, and allowed upon the other items of the counterclaim the sum of $ 275.94, and, after charging him the sum of $ 2,154, which had admittedly been paid to him by the city of Grand Forks, in the form of paving warrants, awarded judgment against him for the difference, $ 55.15 and costs of the action.
It is undisputed that the plaintiff shipped 26,656 feet of stone to Grand Forks, and that the defendant took the same from the cars, and set in place on the streets 22,186 feet. The rest of the stone is piled up at Grand Forks, and has not been set in the streets, except about 600 feet, which amount, after being set in place, was taken up by the defendant under the direction of the city council.
The decisive question for determination in this case is whether the stone in question was sold to the defendant, as plaintiff claims, or whether the defendant was merely employed to transport the stone from the cars, and set it in place, as alleged by him. The trial court found, as we have seen, that the defendant's contract was one of employment only. The majority of the court, after a careful review of the testimony, have reached the same conclusion. The contract between plaintiff and defendant was not reduced to writing. It is agreed that whatever contract was made was entered into at a single conversation which occurred between them at Grand Forks at a time when paving contracts were being let. This conversation occurred under the following circumstances: The city of Grand Forks had decided to grade, pave and curb certain streets, and, with a view to letting a contract therefor, had advertised for bids, to be based upon specifications of the items of the work to be done, which included the paving, excavating, and curbing required; the curbing being estimated at 42,000 lineal feet. Both plaintiff and defendant filed bids. The defendant's bid was for all the work, including excavating, paving, and curbing. His bid on the curbing covered two different kinds of stone,--one for 70 cents per foot, and the other for 74 cents per foot. The plaintiff's bid was for curbing alone, and included two kinds of stone,--one for Mankato limestone, at 58 cents per foot, and the other a sandstone curbing, at 51 cents per foot. At the time of making his bid, plaintiff presented to the city council a sample of the sandstone which he proposed to furnish. The bids were opened on September 19, 1898, and after being considered, the city council appointed a special committee to consider the same, and to report on the following day. Both the plaintiff and the defendant appeared before this special committee. On the following day, the 20th, the committee reported to the council in writing as follows: On the same day the city council passed a resolution to the effect "that the contract for paving and curbing be awarded to P. McDonnell at the price named in his bid for cedar-block pavement, without tile, and that the Dunville sandstone be used for curbing, at fifty-one cents per foot." It is shown that the city council, as well as the special committee, were satisfied with Mr. McDonnell's offer as to the grading and paving, and that they were anxious that he should have the contract, but they were equally anxious that the plaintiff's curbing should be used. It was therefore important, from the city's standpoint, that the plaintiff and defendant should reach an agreement whereby the city could get it. The special committee of the city council therefore urged the plaintiff and defendant to get together and come to an understanding. In pursuance of this request, they retired to a hall outside of the committee room, and it was at this place and time that the conversation in question occurred. After the conversation, they returned to the committee room and reported their agreement to the committee. The testimony of the parties as to what the conversation was is in conflict. The plaintiff testified as follows: ...
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