Frost v. King ( 1918 )

WHITING, P. J.

The defendant became the owner of a one-'foitrth interest in the accounts idlue a certain corporation. H!e entered! into a written' contract with' plaintiff under which plaintiff rwiasi to erect for him a dwelling house. The consideration for piMmtifFs covenant to build sulah house was, in part, an assignment to plaintiff of said accounts. This.contract was ini duplicate, and had attached to it the plans and specifications of the building to be erefctddl as well as the accounts assigned t'oi plaintiff, among which' accounts were those above referred! to. The contract provided (that the total' of the “corporation” accounts so. assigned' aggregated1 .“approKiinjialtdy $20,000 ;or more” — it being supposed ‘that that.wa® the amount oif siuchl corporation accounts. It appears that, reaching this1 .total of $20,000, Ithe clerk who bad compiled Blame made an error and, after the contract between these parties was entered into, it was- -disooyeretíi by defendant that the total of salid “corporation’’ account's! was less than $15,000. Defendant claims thait, upon the 'discovery of this error, he offered1 to1 amid did turn over to tine plaintiff certain accounts, ’other than “corporation” accounts; 'and be 'claims these accounts were received -by .plaintiff in lieu of and under the terms of such contract. Plaintiff claims that, upon defendant’s advising him of the deficiency (in the “corporation” accounts, it was agreed that defendant might torn over other accounts, but to- be credited merely for whatever was realized, from the same. Plaintiff ■brought this action to recover the difference 'between the onefburth of -tire face value ’of the 'accounts of said corporation as turnad! over to him and1 $5,0-00 — the one-íounth of the agreed $20,000 face value of the “corporation” accounts, leSs a certain-amount which lie admitted1 he had received from the accounts turned over -after the contract -was entered' into-. Defendant,, besides contending that these last .accounts had been- turned over and received to tafee the plia-ce of tire lacking “corporation” accounts, 'also1 contends that, after ibhe -dwelling house was constructed and when the same was accepted1 by him-, a full settlement was had between- (himself and plaintiff, and that hie paid to the plaintiff in such settlement tine -sum of $550. Plaintiff -contends that this $550 was received! in settlement of extra work •done in the construction cif the -dwelling, owing* to- changes requested by detonidaint therein, -and for work -done and1 materials fu-mished in th-e erection o-f a garage, etc., and that no- -part of the said $550 was received! in settlement of the amount due muden the written Contract. Defendant, as a counterclaim, contends that the dwelling -house was not properly -constructed, and claims damages in a -consicterable amount on that account. The -cause was triad to a jury, and -resulted in a verdict for plaintiff in -an amo-unt somewhat less than the amount .claimed) by him, b-uit in- an aim-o-unt which- shows that the jury, if -it allowed any counterclaim, did not allow anywhere near the amount claimed1 by defendant. From the judgment entered on such verdict and from- an order -denying a new trial, this appeal was taken.

Appellant assigns as error certain -rulings' ’olf the -court in the receipt of evidence, certain instruction® given by the court, the -refus-al ¡to give an- instruction asked', an;d -he also specifies certain particulars wherein he claims the evidence was insufficient to sustain the verdict.

[x] Appellant assigns as error the -receipt in ewidewc-e of Exhibit A, one of the duplicate contracts. The basis of his abjection fcl this exhibit wa-s the fact that it toiore evidence o-f having been) changed There is no merit in this assignment. The so-called changes consisted-of lead pencil -markings there-on, which markings ¡were explained; furthermore, the ¡conceded duplica te, free from any alteration, was- received in evidence, thus leaving without dispute what constituted- the contente o-f the contract.

[2] Appellant assigns- a-s error the admitting of an answer to this question asked' of respondent: “State whether or molt you finished this house of Dr. King’s in a good workmanship' manner.” There was n-o error in - this milling. The witness was ■ an expert, and had a right to answer this question as su'ch, expert:

[3] App-ellanit assigns as error the refusal of the court 'to allow appellant -to ask '-respondent ais to how much mton-ey he received from ibh-e “corporation” accounts. It is perfectly clear that this railing was correct. It -wia-s • absolutely none of appellant’? business how much or how little respondent realized from such ¡accounts.

[4] It appeared- that appellant was not satisfied with .the way in which, respondent was doing -certain painting and' wood finishing, and requested leave to have another party do that part of ¡the work. It is undisputed! that resplendent -consented to- this, and respondent -contends that a credit was given to- appellant therefor. Upon -the trial, appellant sought to introduce evidence to show haw -long ¡it took the cither party to .do ¡this work. This evidence was ¡objected- to>, among other grounds, because not tending ‘to prove an,y issue in the cas-e. This objection, was -sustained, and rightly 'because, un-der the pleadings, there ¡was n’o; foundation for this' evidence. The only i'slsue that could properly have been raised in relation thereto, under the pleadings, was th'e amount o-f credit -that was or should have, been ¡allowed appellant therefor, and! upon this the evidence is undisputed.

In ¡one insitraiction the trial court assumed that, if respo-nd.eriit’s contenticns were right,- respondent iwou-ld be entitled to- recover one-fourth -of the difference between the actual face v-alue of tibe “corporation” accounts ;ainid' $20,000, lesls what he ted received 'frtlm accounts not included in ¡tihe original contract. 'Appelant contends that this Was erroneous. — that by so. instructing it was assumed that the value of lacking “corporation” 'accounts would have been equal to their face value, and that lit cannot be assumed that the actual value of an account is. the apparent face value thereof. W'e do- not desire to express .any view on the legal proposition Upon which appellant bases his 'contention. It is 'sufficient to Call attentioni to the fact 'that we have not a case where appellant failed to turn over certain accounts that were in existence, the actual value of which might have been proven; fault there were no “corporation” accounts other than those turned over. It is apparent that it would border upon the ridiculous to say itihiat one could pr.dve the actual value of accounts that never in ¡fact existed. There is- no contention nor evidence to support any contention that these “corporation” aacounts were taken upon any understanding that they were wloirth lesls than their face value.

[5] '-Appellant exceptedl “to that portion of the charge wherein tire court, (in' effect, instructs the jury that: Tm determining twhotihier -the defendant's house was constructed according to donitract they should be gulided' Iby 'their judgment a's men,' for the reason that the jury should have been instructed to' ctoimsiider only the evidence received on the trial in determining such isisue.” The exception as so worded is the only basis for assignments of error 8 and 9. Assignment of error 8 contains a lengthy Statement of a part o(f tihe linstructi’cta as given by tihe court, and adds thereto certain word's directing the jury to exenoi'se their “judgment and knowledge.” No isiuch .direction was contained in su'ch part of ¡the instructions. In only two places in the instructions was any suggestion made that, in reaching a verdict, the jury should be graded) by “.their judgment.” In the first of these places the court in effect directed, the jury to' alppiy their “judgment and experience” to the consideration of fihie evidence. Such instruction wlas not only Correct, but it is not referred to In either of the assignments lor error. In assignment of error 9 the court, after calling albtenticn to the fact that the plans and specifications of the house were crude and' meager, and that the contract did not go .into details las it should, imsibructedi the jury that:

‘‘You will be called upen to exercise conteadekaible of your judgment, or as -mu’dhi as you have, and experience and' kn'oiwledg’e in; reference to the -c'c/nstru'ctk» of a building of the kind that is described' and attempted to be described and contracted for in this contract.”

Such instruction did- not take the evidence from the consideration, of -the jury, but directed1 the jury to, apply their judgment and knowledge to the whole situation as it appeared, and 'by that method dtetermin-e whether Aere had been c'ohistructed a building such as was really contracted' for.

Appellant assigns' as error the refusal of the , count to give a certain Instruction. We need only call attention toi -the f.act tih-afc the only place in the record where there i's any reference to a request for such instruction) is in said! assignment. It does nlolt appear in the statement of the proceedings: before the trial court.

It would serve no useful purpose for us- to review in detail •the evidence received. The evidbnee wa© amply sufficient to -sustain the verdict. In fact Aere -has seldom come before us a cause in which the record upon appeal shows a trial freer from any, even nonprejudicial, error.

The judgment and order appealed from are- affirmed.