Wilson v. Yegen Bros.
| Decision Date | 24 March 1909 |
| Citation | 100 P. 613,38 Mont. 504 |
| Parties | WILSON et al. v. YEGEN BROS. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Park County; Sydney Fox, Judge.
Action by H. I. Wilson and others against Yegen Bros. and others. From an order granting a new trial after judgment for plaintiff, plaintiffs appeal. Reversed and remanded.
Dan Yancey, for appellants.
Fred L Gibson and John T. Smith, for respondents.
This action was brought by Wilson, Hinds, and Cook against the Park county free high school, a body corporate, to recover $852.09 for work done and materials furnished in constructing a concrete sidewalk about the high school grounds in Livingston. Thereafter the money was paid into court, and Yegen Bros. and Cothrin & Todd were substituted as defendants in the place of the Park county high school. The answer of Yegen Bros. is a general denial and an affirmative defense, to the effect that the work was done and materials furnished by Ben Hager, and not by the plaintiffs or any of them; that defendants have an unsatisfied judgment against Hager for something over $600 and they ask that they recover an amount sufficient to satisfy their judgment. The answer of Cothrin & Todd is similar to that of Yegen Bros. They have an unsatisfied judgment against Hager for about $600, and seek to recover an amount sufficient to satisfy their judgment. The affirmative allegations of these answers were put in issue by reply.
At the trial, A. B. Cook, one of the plaintiffs, was the only witness. He testified, in substance, that the plaintiffs furnished the materials and paid for the work in question that Ben Hager was their foreman or superintendent, employed at a salary of $150 per month, and, in addition thereto, was to receive 25 per cent. of the profits, if any, arising from work done of that character; that it was the intention of the plaintiffs to form a corporation to be known as the "Montana Concrete Construction Company"; that this intention was not carried out, but in the meantime the plaintiffs took some contracts and did some work, that some of the contracts were taken in the name of the Montana Concrete Construction Company and some in the name of Ben Hager; that it was understood and agreed between the plaintiffs that, while thus carrying on the work, they should share equally the profits and losses of the business; that there were not any profits in the business, but large losses, which were shared by plaintiffs equally; that the contract for the work in question was taken in the name of Hager, but that Hager did not have any interest in it, except as the agent of the plaintiffs and to get his salary while the work was being done, and to get his share of the profits, if any there had been. Upon cross-examination counsel for defendants sought to show that the plaintiffs had never made and filed the certificate required by sections 5504, 5505, Rev. Codes, to be filed by partners doing business under a fictitious name, but the evidence was excluded.
The defendants having declined to introduce any evidence, the court found the issues in favor of the plaintiffs, and rendered judgment accordingly. The defendants thereafter moved for a new trial, specifying as the grounds of their motion errors of law occurring at the trial, insufficiency of the evidence to justify the decision of the court, and that the decision is against law. The particular errors relied upon are set forth at length in the bill of exceptions.
The first four specifications relate to the refusal of the court to permit defendants to show that plaintiffs had not filed the certificate mentioned in sections 5504, 5505, Rev. Codes. The other alleged errors are as follows:
The court granted the motion for a new trial, and the plaintiffs appeal from the order.
In deciding the case in favor of the plaintiffs in the first instance, the trial court found that the evidence given by Cook was true, and this is not questioned by defendants at all; on the contrary, in their specifications "a" and "b" above they seem to accept his evidence as true. They did not ask for a new trial upon the ground that Cook's testimony was not true. By their specifications above they practically concede that Cook was a witness entitled to full credit, and as such his evidence was sufficient to prove the facts with relation to which he testified. Assuming, then, that Cook's testimony is true, it establishes the facts that he Wilson, and Hinds were copartners in this transaction with the Park county high school; that they took the contract in the name of Ben Hager; that Hager was merely their agent, and did not have any interest in the contract; that the plaintiffs furnished the materials and paid for the labor; that they have not been paid for the work and the value of the materials furnished and work done. It is difficult to conceive of anything more necessary to make out a prima facie case in an action of this character, and there is not any merit in specifications 5 and 6 above. We are driven to believe, then, that in granting a new trial the district court must have concluded that an error of law had been committed, to the injury of the defendants.
The only alleged error of law mentioned in the bill of exceptions arises upon the refusal of the trial court to permit the defendants to show that the plaintiffs had not filed the certificate required by the statute to be...
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