Cook & Woldson v. Gallatin Railroad

73 P. 131, 28 Mont. 509, 1903 Mont. LEXIS 127

• Court: Montana Supreme Court
• Decided: July 20, 1903
• Docket: No. 1,557
• Status: Published

Opinions

ME. JUSTICE MILBUBN,

after stating the case, delivered the opinion of the court.

1. The first alleged error assigned is the action of the court in overruling the defendant’s motion for judgment on the pleadings. We do not think that the court erred in this behalf. The motion was directed to the first cause of action only, and was upon two grounds: (1) That under a contract in writing plaintiffs had agreed to haul and distribute 40,000 ties, and that the pleadings showed that they had not been hauled; and (2) that the pleadings showed that there was not anything due from defendant to plaintiffs.

Eeference to the pleadings discloses that the suit.was on a quantum meruit for services rendered by plaintiffs to defendant. Plaintiffs admitted in their replication that there was a contract in writing, but denied that defendant at all performed its obligations thereunder, and alleged that there was another and separate agreement made between plaintiffs and defendant, by the terms of which plaintiffs were to receive extra pay for hauling ties to a greater distance than was provided for in the written instrument. This fact alone would be sufficient h> justify the action of the court in denying the motion for judgment on the pleadings. It is said, by appellant that the cause of action for the extra hauling could not be set up for the first time in the replication. Certainly the.plaintiffs could not state their case in chief in the replication, but we do not understand that the plaintiffs did anything else than explain their denial of the allegation in the answer that there never had been any other agreement between the plaintiffs and the defendant than the one evidenced by a certain letter referred to in the answer as stating the contract. If defendant desired to attack plaintiffs’ complaint for declaring, as it supposed-, in one count on a quantum meruit on two separate causes of action, to-wit, for the hauling of ties under the express contract and for extra services not provided for in said letter, the proper step was not by motion for judgment on the pleadings.

Both of the reasons given in the motion seem to be pi'edicated upon the idea that the contract was an entire one, and that it was necessary for plaintiffs to allege that they had hauled and distributed 40,000 ties before they could recover anything at all. This is not so. If there was in fact a failure to pay on the 15th of any one month, and the plaintiffs had hauled and distributed ties as they were expected to do under the terms of the contract, they would not have to continue hauling until the end of the term of the contract and wait till then for their money. There is nothing said in the pleadings about the failure to render an estimate. The answer sets forth the particulars wherein the plaintiffs bad failed to perform, but does not say that there bad been any failure on the part of any one to furnish such statement. It is not claimed in the answer that any payment was ever made to the plaintiffs.

It does not seem to be necessary to quote or cite authorities to support the statement that plaintiffs, if they performed as above suggested, did not have to wait until the end of the term, but could sue on default of monthly' payment and bring their action on a' quantum meruit. (See note to Cutter v. Powell, 2 Smith’s Leading Cases, at page 55; Broumel v. Rayner, 68 Md. 47, 11 Atl. 833 ; Perkins v. Hart, 11 Wheat. 237, 6 L. Ed. 463.) The opinion in Riddell v. Peck-Williamson, Heating & Ventilating Co., 27 Mont. 44, 69 Pac. 241, cited by appellant, does not contain anything opposed to the views expressed above, but, on the contrary, there is a statement therein that “if payments were to be made, * * * then a cause of action accrued as soon as the defendant failed to make a payment'when it should have been made. Default in making such payment would have entitled the plaintiffs, if they continued to perform under the contract, to recover judgment for the price of the work already done; or such default would have warranted them in treating the special contract as at an end, and authorized them to maintain an action on the implied promise of the defendant to pay the reasonable worth of the labor done and materials furnished. They could, a.t their option, have pursued either course.” So, in the case before us, the plaintiffs, if the defendant failed to pay, could have kept on working under the contract, and sued thereunder for the fixed value of their services, with a second count for the value of extra services; or they could adopt the course which they did, treating the special contract as at an end and suing on a quantum meruit.

The complaint counts upon the hauling and distributing of ties up to and including December 31st, and alleges nonpayment therefor, the suit having been commenced after January 15th. As we have said, the answer does not allege, among other things, which defendant therein says-that the plaintiffs failed to do-, that the plaintiffs were to furnish and did fail to furnish estimates. We do not find the court in error in overruling said motion for judgment on the pleadings.

2. The second assignment is that it was error for the court to overrule the objection of the defendant to the testimony of Martin Woldson as to 1,216 ties hauled beyond the limit. The ground of objection was that there was no allegation in the com: plaint, supporting such testimony, and that there is but-one contract pleaded in the complaint, to-wit, an implied contract; and plaintiffs admit the execution of a written contract set out in the answer, and that no testimony could be admitted outside of such express contract, and that the only allegation in plaintiffs’ pleadings in respect of the hauling of ties beyond the limit is an allegation in the replication, which defendant says is a complete departure from the complaint. What we have already said applies to this assignment, and we do not find that- the court erred. The same may be said of assignments 3 and 4.

3. In assignment No. 5 it is said that the court erred in permitting the witness Cook to testify as to the reasonable value of the hauling of the 21,809 ties. The reason assigned in the argument in the brief is that the plaintiffs could not sue on a quantum meruit, and, in any event, the contract price — ten cents — was the measure of damages. Eeferring to what wTe have said above in Section 1, and the further fact, disclosed by the record, that the witness testified that ten cents, the contract price,, was the reasonable worth, except as to the 1,216 hauled beyond the point fixed by the contract, we cannot see that the court erred in permitting the testimony to be introduced.

4. Although assignment 6 is a merger, embracing three alleged errors not specially numbered as the rule requires, still we take it up with assignment No. I. The point relied upon in each is that the court erred in not allowing defendant to prove that the work had not all been done;'that is, all the ties had not been hauled. This was admitted by all parties, and there could not be any error in tbe court cutting off proof to show wbat bad already been admitted. Plaintiffs only claimed that 21,809 ties bad been bauled. E'acb of these assignments is made and argued upon the presumption that the plaintiffs had failed to execute completely the contract on their side before suing to recover anything. We cannot say that the court erred as alleged in the sixth and seventh assignments. These remarks are applicable also to assignment No. 10.

5. Assignment No. 8 is that it was error for the court, to exclude (1) the testimony of the witness Signor in reference to the defendant’s first counterclaim, (2) to sustain the objection of the plaintiffs thereto, and (8) to reject the offer of proof made by the defendant. The reference to tire transcript covers from line 5, page 49, to line 15, page 51. This assignment is an assembling of more than one alleged error in one assignment. At least one of the questions refers to. the approach to “Hoffman’s Mine,” possibly mentioned in the question with reference to the second counterclaim, and not referred to in the contract as a place towards which ties should be carried. Suffice it to say that not a single date is given in any one of the questions asked and objected to, except in one, wherein it was asked if there had not been an interruption of track-laying on or about the 21st day of December, whereas the month of December ‘is not mentioned in the answer in the statement of the first counterclaim, in which statement are set forth particularly the different days upon which loss is alleged to have occurred by the delay of the plaintiffs. The items upon which the damages for delay are based in the first counterclaim are set forth with great particularity as to year, month, day, hours, men, teams, locomotives, etc. It was not error for the court to refuse to allow so wide a departure from the bill of particulars contained in the answer. After careful consideration of the questions, so. far as we can determine which of them apply to the first counterclaim, we conclude that the court did not err as alleged.

6. As to assignments 9 and 16, we need only say that all of the evidence offered and excluded referred to the second counterclaim, in which defendant sought to recover for damages alleged to have occurred to it after the suit was commenced, and it was not error for the court to exclude it.

T. We have carefully considered the points raised by appellant’s assignments numbered 11, 12, 13 and 14, as to instructions asked for by the defendant and refused by the court, and assignment No1. IT, as to an instruction given, and we do not find that the court erred as alleged.

8. It was error, as declared in assignment No. 15, for the court to give instruction numbered 8. The instruction was in relation to plaintiffs’ fourth cause of action for the sum of $31.50, wages of a watchman. In it the court told the jury that if they believed the testimony in regard to' that item their verdict should be for the plaintiffs in the sum of $31.50 and interest, and, if they did not believe the testimony of plaintiffs, then they should find for the defendant as to this cause of action. The giving of this instruction is assigned as error, and we think correctly so. To believe what a witness says is one thing, and to find a fact from the evidence given by such witness is another. It was for the jury to determine from the evidence how much, if anything, the plaintiffs should recover. The evidence is very meager as to this matter of the hiring of a watchman. Mr. Cook, one of the plaintiffs, testified that Mr. Wiswell, the superintendent of construction, wanted to rent a certain camp belonging to: the plaintiffs; that Mr. Hall, the vice president and general manager of the defendant, was not present, but that Mr. Wiswell wished plaintiffs to leave the camp for the company’s use; that plaintiff Cook then saia that, if the camp were left for the company’s use, he (Wiswell) would have to pay for a watchman; that Wiswell said that would be all right, Hall would fix that; that upon a demand for the rent he (Wiswell) would not 0. II. the bill. Cook did not remember the number of days the watchman was there, but he paid him $31.50 for the time he was there after the tálk with Wiswell.' Hpon cross-examination he said that Wiswell was not positive that they would want the camp, and he would like to have it left there until Mr. Hall came back. Mr. Hall afterwards rented the camp, used it, and paid rent therefor. Hall never agreed to pay for a watchman; he (Cook) had no conversation with any one except Mr. Wiswell; Wiswell told witness that he did not know whether Hall would want the camp or not, but that he was almost positive that they would. Witness said he knew that the conqiany or its general manager, Hall, authorized Wiswell to hire a watchman there, because he was. permitted to make deals of that kind all the time.

It is sufficient to say, in respect of this instruction, that' there is nothing in the evidence to show how many days the watchman was there, and, if anything was owing under such evidence, it certainly was for the jury to say whether $31.50 was a reasonable and proper amount to pay for his services, and it was not for the court to direct a verdict of $31.50, even if the jury did believe all that Mr. Cook said upon the subject, A motion for a nonsuit upon such evidence upon this cause of action, if it had been made,, ought to have been granted.

For the reasons stated above, the order denying the motion for a new trial and the judgment are affirmed as to the first, second and third causes of action, and reversed as to the fourth cause of action, as to which fourth cause of action the cause is remanded for a new trial.