Western Irrigating Co. v. Stayton , 1 Kan. App. 739 ( 1895 )

The opinion of the court was delivered by

Denntson, J. :

The case-made filed with the petition in error in this case contains, on page 210 of the record, the following statement: “The foregoing case-made contains all the pleadings, motions, orders, verdict, instructions given by the court (as well as those refused) and findings and the judgment rendered in the case.” On page 9i of the record is the following statement in the case-made : “ . . . the plaintiff, to sustain the issue upon his part, introduced the following testimony, to wit:” and after following the testimony clear through upon both sides, and at the end of the evidence, on page 194 of the record, is the following statement: “This was all the evidence given on the trial of this case.” While it is true that some of the exhibits shown by the evidence to have been introduced and read do not appear in the evidence, still the case contains a statement of so much of the proceedings and evidence as is necessary to present at least some of the errors complained of, and those errors will be considered by this court. The briefs of both the plaintiff and defendant in error in this case are so imperfectly prepared that it will be difficult to review each error in the order assigned. Many of them are immaterial and based upon false premises and theories. The attention of the attorneys in this case is called to the language of Horton, C. J., in Braley v. Langley, 28 Kas. 806.

The pleadings in this case raise but one issue. The petition alleges the corporate existence, the execution of the contracts, the due performance on the part of the plaintiff, a demand for the money, and the failure of the company to pay $370.60 thereof. The answer admits the corporate existence, the execution of the contracts, denies being indebted to the plaintiff in any sum whatever, denies every allegation not specifically admitted, and in the seventh paragraph thereof, as a defense, says that there is remaining unpaid $360.60 which is due and payable upon the completion of the work in a substantial and workmanlike manner ; that the plaintiff has failed to perform such work in such manner, and that the defendant' is ready to pay the balance when said work is completed according to the terms of said contract and specifications. This clearly puts in issue the completion of the work in a substantial and workmanlike manner.This issue was properly submitted to the jury, and it found generally for the plaintiff, and specially that the work was done by the plaintiff according to the contract and specifications in a workmanlike manner, and that there was due from the defendant to the plaintiff, as the balance of the contract and the interest thereon, the sum of $373.22. This finding is final.

As to the second defense contained in the eighth paragraph of the answer, there is no evidence to sustain this defense. This is admitted by the plaintiff in error in his brief. Hence, no claim for damages that may have been set up in this paragraph because of the failure to complete either of said contracts at the time mentioned therein can be considered in this case.

The plaintiff in error contends that time is of the essence of the first contract; that the petition of plaintiff in the court below alleges full compliance with the contract, and many of his assignments of error are based upon the failure of the petition to allege a waiver of the time of the completion of the dam. It is clear that neither of the parties to this suit considered time of the essence of the contract. The second contract, which is dated the 3d day of March, 1890, speaks of and treats the dam as the property of The Western Irrigating Company, and stipulates for additional work to be done on said irrigating company's dam, and for the driving of another row of piles, and stipulates that the east line of the apron, provided for in the original contract, should be fastened to a plate placed upon said piles, which were provided for in the second contract. The evidence shows that one J. 0. Parker was the agent of The Western Irrigating Company, and was there by their direction to see that the work was properly done ; that he was present while Stayton was at work upon the dam after January 1, 1890, and until the time of its completion, and that during said time and on March 3, 1890, he, as its agent, contracted with said Stayton to do additional work upon said dam ; that after the completion of the contracts he took charge of the dam and cut it down. The evidence also shows that in May, 1890, the company, knowing that the dam was not completed until about April 15, 1890, made two payments, one of about $1,200 and one of $39.40, upon said contracts. It would be manifestly unjust for the company knowingly to allow Stayton to proceed with the work of building the dam after January 1, 1890; to contract with him on March 3, 1890,. to do additional work, and part of it clearly a change of the first contract; to take possession of the dam and make changes in it, and then say to Stay-ton, “ We will not pay you because you did not complete the work on or before January 1, 1890.” The evidence during the trial of the case nowhere shows that any question was raised as to the failure to complete the work by January 1, .1890'. Mr. Kelley, the president, Mr. Rogers, the treasurer, and Mr. Parker, the agent, frequently, after January 1, 1890, objected to the manner in which the the work was being done but not to the time in which the work was being completed. This question is first raised by the plaintiff in error in its brief in this court after the jury had found against it upon the issue presented, i.e., the manner of doing the work. Without deciding whether time was of the essence of the first contract or not, ,we hold that, in view of the allegations in the pleadings and the facts shown by the evidence which have been specified in this opinion, the plaintiff in error waived the time in which the contract was to have been completed, and was estopped from attempting to evade liability because the work was not completed on January 1, 1890. The second contract which is set out in the petition and admitted in the answer, and the issue tendered by the seventh paragraph’of the answer, clearly lay the foundation for the introduction of evidence tending to show that the work was completed in a workmanlike manner, and the plaintiff below would be entitled to recover by proving that said work was so completed, although it was not done until from April 15 to May 1, 1890.

We have carefully examined the evidence and the instructions and find that, in accordance with the views herein expressed, there was no material error committed by the court during the introduction of evidence or in the instructions given or refused.

The judgment of the district court will be affirmed.

All the Judges concurring.