Taylor v. Hall , 8 Idaho 757 ( 1902 )

STOCKSLAGER, J.

— This case is here on appeal from the district court of Ada county. A jury trial was had, a verdict in favor of the plaintiff rendered, and judgment entered according to the finding of the jury. The appeal is from the judgment, and also from an order overruling a motion for a new trial.

By reason of the conclusions reached in this case, we find it necessary to set out the following allegations of the complaint: That between the seventh day of September, 1899, and the seventh day of December, 1899, plaintiff performed services for the defendant, at his special instance and request, in the capacity of a contractor in constructing the roadbed cf the Pacific and Idaho Northern Railway Company, in the county of Washington and state of Idaho, for which services defendant agreed to pay plaintiff the sum of $5,416.54; that defendant has not paid the same, nor any part thereof, except the sum of $4,673.07. For a second separate cause of action, plaintiff complains and alleges that between the seventh day of September, 1899, and the 7th of December, 1899, plaintiff performed services for the defendant, at his special instance and request, in the capacity of a contractor in the construction of the roadbed of the Pacific and Idaho Northern Railway Company, in the county of Washington and state of Idaho, which services consisted in putting in a stone culvert at station 473 on said roadbed; that said services were reasonably worth the sum of twenty-five dollars; that defendant has not paid the same. Then follows a prayer for judgment in the sum of $768.47. The defendant, answering the first cause of action, denies that defendant ever entered into a contract, or that plaintiff performed any service for defendant for any sum greater than $4,673.07, and th’af defendant had paid plaintiff in full for all work performed by plaintiff for defendant. Answering the second cause of action, defendant denies that plaintiff constructed a stone culvert at station 473 of the roadbed, or elsewhere, for which he has not been paid in full.

On the trial of this case in the district court, the plaintiff testified that he did certain riprap work, subgrading, grading, and building a stone culvert, for the defendant, under an express contract, and that such work was not included in a settlement as shown by Defendant’s Exhibit “B.” This exhibit seems to have been introduced by the defendant without objection on the part of the plaintiff. Exhibit “B,” above referred to, in part is as follows: “Estimate No. 3. Pacific and Idaho Northern Railway Company, Fourth Division. Month ending December 11th, 1899. From station 456 to station 479. Final estimate No. 3, showing the work done upon this contract to the above date.” After giving the figures of the various kinds of work done showing a grand total of $4,673.07 as the amount due, it is certified by L. H. Friend, division engineer, and Charles D. Moore, chief engineer, as being a final estimate and as being correct. There seems to be no dispute between the parties as to the date of the work, or the particular locality where it was done; nor is it disputed that plaintiff received the said sum of $4,673.07. The contention of plaintiff in the court below was that the estimate was not complete, or did not show all his work on the contract, and that later he was to have a further statement, which he has never received, and that the amount he now sues for was work not included in the estimate, as shown by Defendant’s Exhibit “B.” The jury, in its award to the plaintiff, did not allow him the full amount of his claim, by $-. We have carefully gone over the items he alleges he has not been paid for, and if we take his own statement in connection with the items, as shown by Exhibit “B,” the jury awarded him considerably more than he would be entitled to.

It is urged by counsel for appellant that when respondent signed the receipt for the sum of $4,673.07, shown by Defendant’s Exhibit “B,” as the amount due on the contract, he signed it as a receipt in full, and he cannot now be heard to question its accuracy. A great many authorities are cited in support of this contention. Neither the pleadings nor the evidence in this case warrant this contention. The record shows that Exhibit “B” was treated as an open account by defendant as well as the plaintiff, and it cannot be urged in this court for the first time that the account was a final settlement, and that the receipt precludes the respondent from questioning its accuracy.

Counsel for respondent call our attention to the rule, and cite many’’ authorities in support of it, that, where there is a substantial conflict in the evidence on the material issues involved, this court should not disturb the verdict of the jury or judgment of the trial court. There is no question about the justice and right of this rule, and it has been announced many times by this court; but in this case it is not a question of conflict, but a want of evidence to support the verdict. As heretofore stated, if we take the evidence of the plaintiff, coupled with the showing in Defendant’s Exhibit “B,” which is uncontradicted, we are forced to the conclusion that the verdict is excessive. The plaintiff testifies that he did certain work for which he has never been paid, whilst the exhibit shows that the work was included in the estimate for which he was paid.

Judgment reversed, and cause remanded for further proeeediugs consistent with this opinion. Costs to appellant.

Quarles, C. J., and Sullivan, J., concur.