Lackman v. Simpson , 46 Mont. 518 ( 1913 )

ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought to recover $760, alleged to be a balance due for work and labor performed by the plaintiff for the defendants under a written contract. The contract is made a part of the complaint. It discloses that the defendants, who own a ranch in Big Horn county, Wyoming, employed the plaintiff to prepare the ground, seed, cultivate and harvest sugar-beets on forty-two and a half acres of their lands, during the season of 1909. The defendants were to furnish the seed, tools, work stock and feed, and the plaintiff was to perform the labor. It was left optional with the defendants whether the plaintiff should be required to top any or all of the beets. The contract specifies somewhat in detail the character of work required of the plaintiff, but it also contains these provisions: (1) That the work shall be done “in a good and farmerlike manner and according to the rules of husbandry practiced in the neighborhood, reference being had to the nature of the crop”; and (2), “said first parties [defendants] shall be the exclusive judges of the efficiency of the work to be performed by the second party [plaintiff] herein.” The defendants agreed to pay the plaintiff $35 per acre for beets which were topped, and $31 for those not topped. Plaintiff alleges that he fully performed the contract in all things by him to be performed; that he topped the beets from twenty acres, and at defendants’ request did not top the remainder; that defendants paid him $637.50 and refused to pay him the balance. The answer of the defendants admits the execution of the contract; that at their request plaintiff topped only twenty acres of the beets; that they paid plaintiff $637.50, and that they refused to pay him anything more. They deny that plaintiff performed the contract according to its terms, and further deny that there is anything due to him. They plead a counterclaim for damages, and therein allege that plaintiff “so negligently cultivated, tilled, blocked, weeded and irrigated said crop, and neglected and delayed the necessary labor thereon until said crop was not tilled or matured in season, thereby causing a partial failure in said crop of more than one hundred eighty tons, which defendants would have otherwise harvested and received the benefit thereof to their damage in the sum of eight hundred and ten dollars.” The affirmative allegations of the answer were put in issue by reply. The cause was brought to trial before the court sitting with a jury, and plaintiff introduced evidence tending to show performance of the contract on his part, and other evidence to which reference will be made hereafter. At the close of plaintiff’s case the trial court directed a nonsuit, and it is from the judgment entered in favor of the defendants and from an order denying him a new trial that plaintiff has appealed.

Since the cause must be remanded for a new trial, we shall not discuss the evidence in detail. In passing, we may say we are inclined to the opinion that the evidence is sufficient to make out a prima facie case of performance according to the terms of the contract, but whether or not that be so is not of consequence now.

The contract provides that plaintiff shall be paid for his work as follows: Five dollars per acre when the beets are seeded; five dollars per acre when the beets are thinned and ready to be irrigated ; five dollars per acre when the beets are ready to be dug; and the balance when the beets are harvested and plaintiff had fully performed all the conditions of the contract by him to be performed. Without objection plaintiff introduced evidence to the effect that defendants were present at all times while the work was in progress; that they observed the work done by the plaintiff and the manner of its performance; that they made no objection whatever to it and without objection made payment of each of the first three installments substantially as it became due under the contract; and that it was only after plaintiff had completed all of his work under the contract that defendants refused to make final payment, and then only on the ground that plaintiff had not thinned the beets early enough in the thinning season. TJnder the terms of the contract the beets were to be thinned before they were irrigated and before the second payment to the plaintiff became due.

Upon the motion for nonsuit the trial court was required to [1] view the evidence in the light most favorable to the plaintiff, and to assume that it proved whatever it tended to prove. This rule has been stated so often by this court that it may now be treated as elementary. (Stewart v. Stone & Webster E. Co., 44 Mont. 160, 119 Pac. 568, and eases cited.) Considered in the light of the rule just mentioned, and it is not open to doubt that plaintiff made out a prima facie case upon either of two theories: (1) Acceptance of his work by the defendants, after they had passed judgment upon it or, in other words, a determination by defendants that plaintiff had performed the work according to the terms of the contract and to their satisfaction as to its efficiency, or (2) a waiver by the defendants of any want of, or defect in, performance of the terms of the contract on the plaintiff’s part.

1. It is to be observed that by the terms of the contract these defendants reserved to themselves the right to’be “the exclusive [2] judges of the efficiency of the work” which plaintiff was required to do under the contract. When the seeding was completed and defendants were called upon to make the first payment, they might have objected to the manner in which the plaintiff had prepared the ground or planted the seed, but with full knowledge of the facts they made the first payment and by their act gave evidence that they accepted the work done up to that point; in other words, this evidence tended to show that they had exercised the judgment which they had a right to exercise, and, by paying for the work up to that point, were satisfied with the manner of its performance. So, likewise, when the beets were thinned and ready to be irrigated, and the second payment was due, defendants might have objected to the work done; but with knowledge of the facts they made the second payment and again gave evidence that in their judgment the work had been performed according to the terms of the contract as interpreted by them. And so, likewise, when the beets were ready to be harvested and the third payment was due, the defendants might have raised the question that plaintiff had not performed the work since the second payment was made, at least, according to the terms of the contract; but with knowledge of the facts they made the third payment and again evidenced the acceptance of the work as done according to the contract and in a manner satisfactory to them. Since their only contention now is that plaintiff failed in the performance of the contract with relation to work done, or which should have been done, prior to the time the third payment became due, and since the evidence tends to show acceptance of all the work prior to that date, plaintiff was entitled to have his ease submitted to the jury and determined on the merits.

2. That part payment with full knowledge of the facts tends [3] to prove a waiver of any defects in the performance, 'the authorities are all agreed. (Johnson v. Gallatin Valley Milling Co., 38 Mont. 83, 98 Pac. 883; Monroe Waterworks Co. v. City of Monroe, 110 Wis. 11, 85 N. W. 685; Katz v. Bedford, 77 Cal. 319, 1 L. R. A. 826, 19 Pac. 523; California Southern Hotel Co. v. Callender, 94 Cal. 120, 28 Am. St. Rep. 99, 29 Pae. 859; Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341.)

But counsel for respondents contends in his brief that the question of waiver was not before the court, for the reason that waiver was not pleaded; and the same objection to the defense of acceptance might be interposed. It is true that either of [4] these defenses, like estoppel, is an affirmative one which must be pleaded. This is the general rule; but the rule is equally well settled in this state that where evidence, which might have been excluded as not tending to reflect upon any issue made by the pleadings, has been admitted without objection, it will be given the same consideration as though fully warranted by the pleading of the party offering the evidence, or, in other words, the pleading will be treated as if it had been amended to admit the introduction of the evidence. (Archer v. Chicago M. & St. P. Ry. Co., 41 Mont. 56, 137 Am. St. Rep. 692, 108 Pac 571; O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994.) Applying the rule just announced, and the error of the trial court in granting a nonsuit is apparent.

We are not to be understood, however, as holding that part payment with full knowledge of the alleged defects constituted either acceptance or waiver, as a matter of law. Our language is to be understood in view of the rule stated above; that on the motion for a nonsuit the evidence will be deemed to prove whatever it tends to prove. The evidence of part payment with knowledge was competent, and should have gone to the jury as tending to prove either acceptance or waiver. (Hattin v. Chase, 88 Me. 237, 33 Atl. 989.)

The judgment and order are reversed and the cause is remanded for a new trial.

Beversed and remanded.

Mr. Chief Justice Brantly and Mr. Justice Sanneb concur.