Enderlien v. Kulaas

Spalding, Oh. J.

1. The notice of appeal is entitled, “E. W. Enderlien, plaintiff, v. Kari Kulaas, defendant,” and it is claimed that this defective designation of the plaintiffs renders the notice invalid for all purposes. Enderlien was one of the copartners in the plaintiff firm. The notice in all other respects sufficiently described the action in which the appeal was taken to identify it, and we think this was sufficient. The respondent could have been misled in no manner by which the defective designation of the plaintiffs.

2. The same defect and others appear in the undertaking on appeal, but appellant made application in this court for leave to substitute a new and correct undertaking, and under the decision in Burger v. Sinclair, 24 N. D. 326, 140 N. W. 235, we must allow this new undertaking to be filed in place of the original.

3. The notice of appeal reads that it is taken from the judgment rendered in the action on the 22d day of December, 1910, and from the order of the court .dated the 21st day of December, 1910, whereby judgment was given in favor of the plaintiff and against the defendant, etc. And it is alleged by respondent that the order is not appealable, and that the appeal is duplicitous. There is nothing in this contention. The order is reviewable on an appeal from the judgment, and is not an appealable one, and the notice amounts to an appeal from the judgment only.

4. The answer of defendant admits her indebtedness to the extent of $85.67, and offers judgment for that amount. The main question to be considered is whether there is any evidence in the record to sustain the finding of the jury that the contract was mutually abandoned. The evidence is set out at considerable length, and it would serve no useful purpose to review it in full; but we think there is sufficient evidence of the abandonment of the contract by the parties to sustain the finding, and that for this reason the judgment notwithstanding the verdict, for a greater amount than the verdict, was erroneous. The defendant testifies that she directed the workmen to cease working on the job, after learning of the new sewer and watermain, and that she called repeatedly to see the plaintiffs on the subject of a new contract, and that they were unable to get together on any change; and she testifies that one of the firm agreed with her suggestions that the old contract was not any good, and said he would make out a new contract, but that when she saw him he did not have time to do it; and that she did not have time to wait for them longer, and got somebody else to do the job. She testified expressly that she asked him to write out a new contract; that when she asked for a new contract he was so busy all the time that he could not make it; that she was there pretty near every day for a week; that she told them that she wanted to know how much she had to pay, because their contract was out of the way; that she asked for the bill four times, and that on the fourth occasion he told her, “You will get that some day;” that she never got a bill from him, and the first thing she knew of the amount was when the suit was brought; that he offered to throw off $75, which she declined to accept; that he told her he would return another contract.

Plaintiffs admitted, in their testimony, that she told them that she did not want them to continue the work, and told them to discontinue it, and that they did discontinue it, and that possibly she told them to stop any further work until they “had made an agreement as to what she was going to pay us for the job;” and one of the plaintiffs testified, on direct examination, that they did not have an agreement with her after they abandoned that contract. We think this is sufficient to sustain the finding of the jury. Of course there was evidence more or less in conflict with this; and it is possible that, if we were to find the facts on the whole record, we should not make the findings made by the jury; but that is not the criterion in this case. The question is whether there was evidence to sustain their findings, and from the tenor of the testimony as a whole we think the jury might properly have found that the plaintiffs gave her to understand, or permitted her to understand, that they did not expect to proceed with the work unless a new contract was entered into, or a modification made of the old one.

5. Error is assigned on the overruling and sustaining of certain objections to questions propounded witnesses, all relating to the subject of the cost of completing the job as contracted for and the profit on it, and as to the difference in distances, etc. They all were intended to aid the jury in arriving at the measure of damages under the second cause of action set out in the complaint, and we think the rulings of the court in each instance were correct. Such evidence was admissible under the complaint, and the one question to which an objection was sustained called for a reason of the witness, and if erroneous was not of sufficient importance to notice.

The order of the trial court was erroneous, and the judgment is reversed; and that court is directed to enter a judgment in accordance with the verdict. Respondents will recover costs in the lower court to the time when the answer was served; appellant will recover her costs on all subsequent proceedings.