St. Paul Distilling Co. v. Pratt

Gilfillan, C. J.

The evidence fully sustains the findings of fact. The assignment of error mainly urged in the oral argument was upon the refusal of the defendants’ demand for a jury trial. The right to such a trial had, however, been waived, and after that the defendants, of course, were not entitled to it. It appears from the settled case that at a previous term of the district court, at the time, as we infer, when the general calendar was called to ascertain what causes were to be tried by the court, and what causes by a jury, this case was by the consent of all the parties placed upon the calendar of causes to be tried by the court and was continued, and, at the term to which it was continued, it was by consent set down for trial by the court on a day certain, which consents were entered in the minutes of the court. It was not until the cause came on for trial on the day so set, that defendants demanded a jury trial. It is not claimed — it could not be claimed — that ordinarily, after such consents, either party could insist on a jury trial. The defendant claims, however, that his consents to a trial by the court cannot be taken as a waiver of a jury trial, because, when they were given, the cause was one for trial by the court, and he could not then insist, on a jury trial, but that, when the cause was reached on the day of trial, it had changed in that respect, so that it was a proper case for a jury; and that his demand, being made on the first opportunity after he was entitled to a jury trial, ought to have been granted. But there had been no change in the character of the action, or of the issues to be tried. As it was when first placed for trial on the calendar of the district court, it remained to the day of trial. As against three of the defendants named in the summons and complaint, only a money judgment was demanded. As against the other two, equitable relief was sought. If issues had been made by all the defendants so named, and all were to be tried together, it would have been a case for the court, and not a jury. But the two against whom equitable relief was asked were not served with process, and. did not appear in the action. As to them and as to the issues tendered on which equitable relief was asked, there could be no trial. All that could be tried was the issues as to the other defendants, against whom only a money judgment was asked, and those issues tried alone were for a jury. That was always the condition of the case.

There was a large number of exceptions to the admission of evidence, upon which errors are assigned. They are all of the same general character, and may be ail disposed of together. The action was for a conspiracy to defraud plaintiff. The evidence objected to was of conversations and correspondence between two of the defendants other than the appellant Pratt, tending to show a plan to defraud plaintiff originating with them. The conspiracy was charged in the complaint against all the defendants but Mrs. Hicks. In such an action, the plaintiff may recover against some of the defendants, to wit, those against whom the allegations of conspiracy and consequent fraud- and damage are established, and fail to recover .against the others. The cause of action is not joint as in an action on a joint contract, or on a liability joint, but not several. So in a case like this, evidence of the alleged conspiracy is admissible, even though the same evidence do not connect all the defendants with the conspiracy. If it were not so, it would be nearly impossible to try such cases, certainly cases in which the conspiracy is planned by some of the defendants, and the others afterwards join it. If, when the evidence is all in, it does not connect one of the defendants with the conspiracy, his proper course is to move for a dismissal, or for an instruction to find a verdict in his favor. There was no error in overruling the appellant’s objections to the evidence.

A question is made as to the measure of damages applied by the court below. The conspiracy by the defendants Hicks, Joslyn, and Pratt found by the court was in effect to make a profit for the three, by procuring from plaintiff, by means of the fiduciary relation in which defendant Hicks stood to it, as its vice-president and trusted agent, a contract ostensibly in the name of Joslyn, but really to be executed by Hicks, for the construction of the plaintiff’s buildings. Stated in other words, it was a plan that Hicks should use the confidential relation between him and plaintiff, not for the benefit of the plaintiff, his principal, as was his duty, but for the benefit of himself and the other two, and to the detriment of the plaintiff. The con-tract running to Joslyn was procured as planned, the price in it for the work being $222,000. The work was done and that price paid. The total cost of the works to Hicks, done by subcontracts, was $163,-000. The three defendants knew that the cost would not exceed that, when they procured the contract at $222,000. By the collusion of the three, the work cost plaintiff $59,000 more than it would have cost had Hicks performed his duty to plaintiff to have the work done at the lowest cost to it. This difference the court adopted, and properly, as the measure of plaintiff’s damages. But appellant claims that, because, in the subscriptions to plaintiff’s stock, the subscribers other than Hicks agreed “to pay thirty per cent, of our subscription as soon as the said George W. Hicks has expended seventy-five thousand dollars ($75,000) on the said distillery'plant," Hicks’s rights and duties in respect to the $75,000 were those of a contractor, and not of an officer of the plaintiff, and therefore to that extent the cost of the work to him was not a proper factor in determining the damages. This must assume that under this stipulation Hicks had a right to charge, as expended by him, more than the actual bona fide cost to him; that he might actually expend $30,000 and Charge what the result of the expenditure was worth to plaintiff — $75,000, if he could show it to be worth so much. That was not the stipulation. He was as much bound to make that expenditure faithfully, as much disabled to make a profit to himself out of it, as in respect to any other expenditure by him. But it is enough that he did not expend a dollar independently of the fraudulent contract. Other objections to the measure of damages are made, but this is the only one we deem it necessary to specifically mention.

Order affirmed.