Mattock v. Goughnour

28 P. 301, 11 Mont. 265, 1891 Mont. LEXIS 79

• Court: Montana Supreme Court
• Decided: December 7, 1891
• Status: Published

Opinions

Blake, C. J.

The complaint contains two causes of action, and alleges that the plaintiff performed work and labor for the defendant between October 26, 1888, and April 10,1891, at the special instance and request of defendant, for the sum of $30 per month, which was the price agreed upon by the parties October 26, 1888, “so long as plaintiff should continue in defendant’s employ;” that “defendant has never been discharged from such services;” that “defendant has paid thereon the sum of $171 for the first five months and twenty-one days, and no more; and that all of said wages due, earned, and owing to this plaintiff from the seventeenth day of April, 1889, to the eleventh day of April, 1891, constantly and without any loss of time, amounting to the sum of $714, is now due and wholly unpaid to this plaintiff.” The second cause of action is founded upon an instrument in writing, a due-bill, which is set forth, and it is alleged that the defendant is indebted to the plaintiff in the further sum of $266 by reason thereof. The answer denies specifically the averments of the complaint regarding the first cause of action, and says that the due-bill has been paid. The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $714 on the first count, and in the sum of $11 86-100 on the second count.” Judgment was entered thereon, and the defendant moved for a new trial upon the ground that the evidence is insufficient to sustain the verdict. The motion was overruled, and the defendant appealed.

The evidence will be stated fully. The plaintiff testified? “I know the defendant, Mr. Goughnour. On April 20th, Myron Goughnour had some stock on the island, and Mr. Goughnour hired me to go over on the island and take care of it. I was told that the stock belonged to Myron Goughnour. I took care of it, and helped to brand the stock, and on the 25th of October, 1888, Mr. Goughnour settled up with me. There was about fifty head of stock, and it was sold as soon as possible, as Myron was going to move off the island, and wanted to go away. The stock was sold in October, and Myron moved off, and I moved where Myron was living. On the day of our settlement I asked Mr. Goughnour if I could go over on the island and work for him. He said, ‘Yes, you may go over there and take care of what is left there,’ and he would pay me $30 a month. I saw Mr. Goughnour frequently after that, but had no conversation with him, except to pass the time of day, only when I went to him for $10, or something of the kind. I was to get $30 a month. I commenced work under the new contract on the 26th of October, 1888, after I was discharged, and have been down there continuously. Mr.'Goughnour told me that he was going to sell the island soon. I worked for the defendant twenty-nine and one-half months. It amounted to $700 and something. My services on the island were worth $30 a month. Mr. Goughnour still owes me $980, of which $700 and something is for wages.” Upon cross-examination the plaintiff testified: “Mr. Goughnour hired me to work on the island, and I went over there and took care of about fifty head of stock that Myron Goughnour had there. The first time was in April, 1888, and I remained until the 25th of October. I was getting $30 a month, and was looking after the stock Myron had there. After the stock was sold, and we had a settlement, I was looking after the island and the things left there — some farming implements, rake, plow, and other machinery. The things are there now. I had a pony on the island. Mr. Goughnour hired me to go there on the 25th of October. I asked him if I could go and work for him on the island. He said, ‘ Yes, you can go over there; but I have not much for you to do. You can go over there and take care of what is left there, and Myron Goughnour & Go. will pay you for any extra work you do.’ Mr. Goughnour said if any one put up a shack over there to notify him at once. My services were worth $30 a month. I was taking care of everything that was left there, and I was boarding myself. It was a lonesome place to be, and worth $30 or nothing. Mr. Goughnour owes me since the 25th of October, 1888, $700 and something. I made a demand for it in January of this year. I remained there from the 25th of October, 1888, to January, 1891, without demanding pay for my services. I bought some hay from Mr. Goughnour, and he bought four or four and a half tons of hay from me.” He testified on redirect examination: “I sold Mr. Goughnour $84 worth of hay.”

L. S. Owen was called by the plaintiff, and testified: “ In January, 1890, I was in Mr. Goughnour’s office, and he was going to get some one to take care of the teams on the island, and he told me that I could go and take care of them, but that I would have to move in the house with the man. I was not acquainted with Mr. Mattock at the time, and I asked if I could not go in the old house down by the stable. Mr. Goughnour said: ‘ Yes, that’s all right, and will satisfy me all around.’ I said it might not satisfy the man living there, and he said it would have to satisfy him, as he (Mr. Mattock) was working for him (Mr. Goughnour), the same as I would be. I think Mr. Mattock has been living there ever since. I have seen him three or four times on the island. He is still on the island.” Upon cross-examination the witness testified: “I went and remained on the island, taking care of the teams. Mr. Mattock was doing nothing particularly. This was in the winter, and he was looking after the things that were left there.” The plaintiff then rested the case.

The defendant testified: “I wish the jury to understand that I had never any interest individually in this island or the property there. In the spring of 1888 I took charge of the affairs of Myron Goughnour, as trustee. The horses and cattle were held distinct. I took possession of them, and had Mr. Mattock to take care of them. Myron was going to move away. He was never in my employ after October 25, 1888. On the 26th of October I perfected a sale of the cattle of Myron Goughnour <& Co. Mattock came in, and we had a final settlement of the whole affair that day, and the due-bill sued on includes my individual account, and the whole business was settled up, and Mattock went away. The next day he came to my office, and asked me if he might return to the island and work for me. I said simply this: ‘I have no further use for you; nothing for you to do particularly; but you can return to the island and take care of what there is there.’ As regards the wages, I told him that I thought Goughnour & Co. would probably pay him for what his time was worth. I never hired Mr. Mattock in the spring of 1888. He did no work for me in 1888. .... There was nothing on the island after the 25th of October, 1888, belonging to me. I know Mr. Owen, who testified in the case. I made no statement to him that Mr. Mattock was in my employ.” Upon cross-examination the defendant testified : “ I had no control over the things that were on the island after the 25th of October. I do not know that I was ever dismissed as a trustee of Myron Goughnour & Co. No person was ever appointed to succeed me. I sent some teams over there, and offered to sell the island, but simply offered it for other parties. I had authority to sell for somebody else. I took charge of the business of Myron Goughnour & Co. in May, 1888. The island was a part of the assets. I have no machinery over there. The property belonged to Myron Goughnour & Co. I had no charge of the machinery. My administration ceased when I settled up the affairs as trustee, and I never had any more management of this business after that. I sold all the property of the company that was salable. I never saw the mowing-machine.” The defendant then rested.

The plaintiff was recalled, and testified: “ The firm of Myron Goughnour & Co. was composed of Myron Goughnour, A. L. Love, and Mr. Mund. Myron was superintendent. I went over on the island the same day we had our settlement. In the evening, after we settled our account, I asked him if I could not move in the old house, on account of feeding hay, and he said, ‘Yes.’ I went up and got my key and wagon blankets, and was staying there under the same contract. The only conversation had with Mr. Goughnour about work was with Mr. Goughnour on October 25, 1888.” Upon cross-examination the plaintiff testified, “I had some ponies onjthe island.”

We have recited all the evidence relating to the motion for a new trial which appears in the transcript. When the record is examined, it will be seen by the testimony of the plaintiff that he was employed in October, 1888, to perform labor at a stipulated sum per month; and the testimony of Owen, with relation to the admission of Goughnour that Mattock was working for him (the defendant), is contradicted. The attention of the court below seems to have been restricted to these issues in the consideration of the motion for a new trial, and the verdict was not disturbed because there is a substantial conflict in the evidence. But we are of the opinion that the case at bar comes clearly within an exception to this general rule. There is testimony of other matters, which was not controverted by the plaintiff, after he was recalled, and is relevant, and shows that the cause stands upon an improbability.

The island and certain personal property were assets of the firm of Myron Goughnour & Co., and the defendant acted as a trustee in the settlement of its affairs, and had no personal interest in the business. The plaintiff knew these facts, and was employed from April 20,1888, to October 25,1888, by the defendant in his fiduciary capacity. The plaintiff was paid in full, and the matters of the firm were closed prior to the making of the contract which is set forth in the complaint. During the period which is covered by the alleged employment of the plaintiff, the defendant was not interested as an individual or trustee in the island, or any property thereon. There was no way in which the services of Mattock could be of any benefit to the defendant. Would any person, under these conditions, agree to pay another wages at the rate of $30 per month ?

During the time which is specified in the complaint — twenty nine and one-half months — the plaintiff did not speak to the defendant respecting this labor. He testified: “I saw Mr. Goughnour frequently after that, but had no conversation with him except to pass the time of day, only when I went to him for $10, or something of the kind.” The parties acted like strangers, and this conduct, under the circumstances which. have been narrated by the plaintiff, is contrary to the experience of men. It is always necessary and proper that directions concerning the character of the labor be given by the employer, and that the servant should make reports from time to time touching his duties. Yet such subjects of business of vital importance were never topics of conversation, inquiry, or consultation, and a large indebtedness was incurred before a demand for its payment was made. The plaintiff does not testify that any amount was ever paid by the defendant by reason of his services, although the complaint alleges that a payment of $171 has been made therefor. The jury found that the sum of $11.86 was due on account of the written obligation for $266, which was in effect a finding that the sum of $254.14 had been paid thereon.

The defendant never recognized by any act the contract which is sought to be enforced in this action. The fact that he had nothing for the plaintiff to do, when considered with all the evidence, is sufficient to justify the court in holding that this claim is unreasonable and improbable. The doctrine which is applicable has been laid down in Blankman v. Vallejo, 15 Cal. 638, in which it is said: “A court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief.” (See Hayne on New Trial and Appeal, § 288, and cases cited; Crook v. Forsyth, 30 Cal. 662; Guerrero v. Ballerino, 48 Cal. 118; Branson v. Caruthers, 54 Cal. 374; Mogk v. Peterson, 75 Cal. 496; Baker v. Fireman’s Fund Ins. Co. 79 Cal. 34; McLennan v. Bank of California, 87 Cal. 569; Landsman v. Thompson, 9 Mont. 182.) We are convinced that the court abused its discretion in overruling the motion for a new trial.

It is ordered and adjudged that the judgment be reversed, and that the order appealed from be set aside, and that the cause be remanded for a new trial.

Reversed.

Harwood, J., concurs.