Telford v. Newell J. Olsen & Sons Construction Co.

HENRIOD, Justice.

Appeal from a judgment entered on a jury verdict in favor of Telford, appellant’s subcontractor on an irrigation project. Affirmed with costs to Telford.

The record is rather voluminous and in major part, quite conflicting. By and large the appellant refers to the evidence that favors its contention, but the record reflects evidence of a substantial, competent nature supportive of the jury’s conclusions, — which prompts our affirmance under familiar principles of review. We think no useful purpose would be served in abstracting that evidence, except perhaps some portions that seem most provocative.

The contract began with certain specifications concerning earth removal at certain points and levels, and the rate of compensation for removal. There also was a substantial item about which the parties had their differences, having to do with cleaning-up operations and responsibility therefor. It is quite apparent from the record that those matters were provoked by changes in plans requiring adjustments. We are satisfied that based on the facts the jury was not unreasonable or capricious in pronouncing the verdict.

Appellant assigns nine points m its brief as bases for a new trial because of error. Points 1, 2, 3 and 7 have to do with instructions that appellant urges should have been given. No exception was taken at the trial because of any refusal or failure to so instruct. Rule 51 of our Utah Rules of Civil Procedure, seems dispositive here which requires an objection at the trial level, without which an assignment of error ordinarily is not permissible.¹

Points 4, 5 and 6 having to do with claims that damages awarded for a certain agreed-to bonus payment, for additional earthwork, and work interference, were not supported by the evidence, seem to be without merit, since the record reveals evidence, which if believed by the jury, did support the verdict.

The last two points on appeal have to do with a) damages for appellant’s delaying the work and b) certain aspects of a general verdict. In view of what we have said above, the latter becomes inapropos and the former is not well taken since it is based on the assumption that appellant had not breached its contract, whereas there was evidence to support the contention of respondent to the effect that appellant impeded the work by some construction of its own, and thus departed from the terms of its contract.

CALLISTER, C. J., and ELLETT, TUCKETT and CROCKETT, TJ., concur.

1 . McCall v. Kendrick, 2 Utah 2d 364, 274 P.2d 962 (1954).