Puget Sound Iron Co. v. Worthington

Opinion by

Turner, Associate Justice.

The appellees move to dismiss this appeal, which was taken under the Appeal Act of 1883, because :

1. No notice of appeal from the final judgment in this cause, or from any judgment therein, was ever given or served.

2. No notice of assignment of error has been made or served.

1. The record'shows that notice of appeal was given by the appellant in open Court and entered upon the journal of the Court, as required by the Act of 1883. This notice was given on the same day that the judgment was pronounced, but its entry upon the journal precedes the entry of judgment.

It is assumed by the appellees, from this fact, that the notice was given before the judgment was pronounced ; and it is argued correctly from this assumption that the notice had no efficacy as a step in removing the cause to this Court.

We do not think that the order in which the proceedings of the Court upon the same day arc entered in the journal necessarily determines the order in which those proceedings occurred. These entries are but the history of past tx-ansactions, and in the absence of some indication to the contrary, it is proper to look to the sense of the different steps of the Court, which are the subject of the entries, to detex’mine their sequence, rather than to the order in which the clerk, performing a purely ministerial duty, makes note of those steps. The judgment and the. notice of appeal having been entex’ed in the journal upon the same day, and the latter naturally following the former in the correct and ordeidy prosecution of the suit, it will be presumed that the notice of appeal was not given until after judgment.

2. We find a proper assignment of errors, with a proper return of service upon the appellees, in the record. The clerk of the lower Court, in his certificate to the transcx’ipt, unnecessarily descended, to particulars, and undertook to describe in his certificate each and every paper included in the transcript, and he omitted to include in that description the assignment of errors.

The objection of the appellees should have been to the certificate to the transcript. Thera is an assignment of errors in the record.

The form in which the objection is made is faulty as being inaccurate, and as failing to inform the plaintiffs in error with certainty of the particular defect moved against.

The motion to dismiss is denied.

The appellees move to strike from the statement of facts in the cause all statements of exception to the rulings of the Court allowed therein, because said exceptions were not saved in a regular bill of exceptions, as provided by the Code, Chapter XIX.

The statement of facts provided to be settled by Section 3 of the Act oE 1883, may include everything material that transpired in the cause not otherwise a part of the record. This was obviously the intention of the Legislature. If a party wishing to appeal were required to preserve his exceptions by a regular bill of exceptions, the procedure by appeal under the Act of 1883 would be more cumbersome than it was before the passage of that act. He would be required to present the Judge with a bill of exceptions and statement of facts, where before he could have combined both his exceptions and his facts in his bill of exceptions.

Considering the spirit of the Act of 1883, the language should be imperative to justify such a construction.

The exceptions were properly preserved in the statement of facts. We do not mean to indicate an opinion, that both the exceptions and the evidence may not be preserved by bill of exceptions, and be brought to this Court with the balance of the record by appeal, under the Act of 1883.

The appellees move to strike the statement of facts from the record, for the reason that the notice for the settlement of the statement of facts served upon them was not accompanied by a copy of the proposed statement, and did not in any way indicate its contents to them, or in any other manner give them means to acquaint themselves with its contents.

The Act of 1883 does not require anything more in this connection than notice by the appellant to the appellee, within thirty days after the rendition of the order or judgment desired to be reviewed, to appear before the Judge upon a day named, which day shall not be less than ten days after the day of service of the notice, to settle and agree upon the facts. This is the plain requirement of the law — no more, no less.

To import into it by the decision of the Court the requirement that a copy of the proposed statement of facts shall accompany the notice, or that the original of the proposed statement shall be lodged somewhere for the inspection of the appellees, would be to assume to ourselves legislative functions.

Counsel for appellees did not indicate clearly whether in their opinion they should have a copy of the proposed statement, or whether the notice should have informed them that the statement had been lodged with some other officer for their inspection. Considering the size of some of the statements of fact produced at the present term, to require a copy to be served in all cases would be an intolerable burden, which we are indisposed to hold that the Legislature intended to impose, in the absence of explicit directions to that effect.

To hold that the original statement must be lodged with some one, would require us to evolve from our inner consciousness the particular individual or official upon whom this trust should be devolved. We cannot do it.

No doubt it would add efficacy to the Act of 1888 to require the proposed statement of facts to be lodged with the clerk of the lower Court for the inspection of the appellee, at the same time that the notice to settle the facts is given; and probably the Court has power by rule to require this to be done for the future. But this notice is to be measured by the Act of 1883 alone, and measured by that we deem it sufficient.

The motion to strike from the transcript what purports to be the instructions given and refused by the Judge, is granted. These instructions are not included in the statement of facts signed by the Judge, nor arc they preserved by bill of excep-tions. They are certified by the clerk as a part of the record. Manifestly, they are no part of the record, and they have no business in the transcript.

The appellees move to strike from the transcript the purported statement of facts, upon the further ground not indicated in their brief, that it is a separate paper from the transcript, and is not certified or identified in any way other than by its titles, as the statement of facts' in this cause.

The objection is made by appellant, that counsel should have noticed this defect in their brief, and having failed to do so, are now precluded from moving against it; but upon the authority of Mulkey v. Me Grew, decided at the last term of this Court, we hold the contrary.

Recurring now to the last objection to the statement of facts, we find that that document is a separate paper from the balance of the transcript — that it bears no file mark of the clerk of the lower Court, and is accompanied with no evidence that it was transmitted to this Court with the transcript by the clerk of the lower Court, as the statement of facts in this cause. The paper may be a statement of facts in some other cause. After having been settled, it may have been withdrawn by the parties. If it had been deposited with the clerk of the lower Court, and that fact properly evidenced, we might presume from the identity of the parties that it belonged to this cause ; and might presume further, from the fact of its being here, that it had come here properly. In its present shape, we cannot consider it at all. Inasmuch as this objection was taken for the first time at the argument, we think the appellant should have an opportunity to cure the defect, and will order that the paper purporting to be the statement of facts be stricken from the transcript, unless appellant cause it to be properly certified by the clerk of the lower Court on or before July 27, inst.; and for this purpose appellant may have leave to withdraw the same from the files of this Court.

The appellant should have asked for this relief by cross motion, and it is now granted by the Court, ex mero motu, because of the informal manner in which the question was raised, and for the purpose of indicating the correct practice in such matters hereafter.

I concur: S. C. Win gard, Associate Justice.

The action in the Court below was brought by the appellees against the appellant for the breach of a contract described as follows:

“ Said defendant entered into a contract with plaintiffs, by the terms of which it was among other things mutually agreed, to the- effect that said defendant should cut, cord, and furnish to plaintiffs, within a reasonable time thereafter, all the cord wood on the lands known as the Bishop and Johnson lands, situate at Irondale, Jefferson County, aforesaid, for the purpose of the whole thereof being made into good and merchantable charcoal, by plaintiffs; and said defendant further agreed to pay plaintiffs eight cents for each and every bushel of said charcoal delivered by plaintiffs to defendant, and to charge plaintiffs for said wood at the rate of one dollar for every forty bushels of charcoal delivered as aforesaid, and no mure.”

The complaint alleges performance upon the part of plaintiffs-with all the conditions of the contract, and alleges as a breach, by the defendants the refusal to deliver the balance of the wood, described in the contract — some four thousand cords — to be mad& into charcoal by the plaintiffs.

The defendant, in its answer, denies all the material allegations-of the complaint. Tor an affirmative defense, it sets out in hose verba, a written contract entered into between the plaintiffs and itself, on the day alleged in the complaint as the day on which the contract sued on was made; whereby it was to deliver to the plaintiffs, to be made up into charcoal, ten thousand cords of wood, more or less; alleges that no other contract than the contract thus set out was ever entered into between plaintiffs and itself, and alleges that it has fully performed the conditions of said contract, by delivering to the plaintiffs some thirteen thousand cords of wood.

The plaintiffs replied to the answer as follows : “That at the time of the making of said written agreement, and thereafter, it was mutually agreed by and between plaintiffs and defendants, in addition to said writing, and as part of the contract sued on in this action, that defendant should furnish plaintiffs within a reasonable time, and plaintiffs should manufacture into charcoal and deliver at the price named in the said writing, all the cord-wood then cut and corded, or standing, or lying, or being upon all the lands known as the Bishop and Johnson lands, situated at Irondale aforesaid.

The defendants demurred to this reply, which demurrer was overruled. The parties then went to trial, and the trial resulted in a verdict for plaintiffs. The cause is here by appeal under the Act of 1883.

The first matter assigned by the appellant in error, which we shall notice, is the failure of the Court to sustain the demurrer to the reply. The appellant attacks the reply as a departure' in pleading. The appellees attempt to sustain it as a new assignment of the contract described in t[ie complaint. In our' judgment it is neither. It is not a departure, because it is perfectly consistent with the complaint. It is not a new assignment, because there is no such thing as a new assignment, as that term was understood at common law, under our system of pleading. If, under our system, it becomes necessary for a party to restate his cause of action, he may do so by amendment. The reply must traverse, or confess and avoid. (Code, Section 86.)

But the reply was, for the purposes of the action, wholly impertinent. It should have been stricken from the cause. It was no more impertinent, however, than the affirmative defense which it professed to reply to. Under our system of pleading, the technical learning of the common law pleader is cf but little account. The plaintiff is required to state his cause of action with sufficient particularity to apprise the defendant of its true character. The defendant, in his answer, must deny the facts alleged in the conqdaint, or he must state new matter in avoidance, or by way of counter claim. If these several pleadings are not accurate and lull, the party required to take the next step may have them made more definite and certain before he proceeds. With these fundamental principles kept in view, there ought to be little difficulty in framing correct pleadings.

In this case, the defendant denied all the matters averred in the complaint. •

His affirmative defense cannot be construed as doing more; neither the supposed affirmative defense, nor the reply to it, added any thing to the issue, which was fully and completely made up when the defendant denied that it made the contract described in the complaint.

It added nothing to that denial to set out affirmatively the version of the contract which defendant insisted was the true one. Seeking no affirmative relief, it made no difference what other contract it had made with plaintiff, if it had not made the one sued on.

The Court properly overruled the demurrer to the reply.

The record shows that the defendant, before demurring, moved to strike the reply, but upon what ground is not shown.

Ho exception was reserved to the action of the Court overruling that motion. In any event, we should not consider the error as sufficient to justify a reversal. The defendant was not prejudiced by the reply, except in the matter of additional costs, and it had set the example of making useless costs by filing an answer stuffed with impertinent averments.

The next matter assigned as error is, the action of the Court in permitting the plaintiffs to introduce in evidence “ negotiations, propositions, talks and bargainings ” had between the parties prior to the making of the written contract.

Without deciding whether the facts received in evidence are accurately described in the assignment, or whether, such as they were, the Court erred in receiving them, it is sufficient to say that the Court, in its charge to the jury, withdrew all such facts from their consideration.

This cured the error in receiving the facts, if there was any error.

The next and last assignment of error insisted on is, that the Court permitted the plaintiffs to show a verbal contract made after the making of the written contract, whereby the number of cords of wood to be delivered the plaintiffs to be made into charcoal was increased from the number fixed by the written 'contract to all the wood on the Bishop and Johnson lands.

It is insisted by the appellants that the contract being for the sale of goods, wares, and merchandise of the value of fifty dollars or more, the same is required to be in writing, and that the terms cannot be altered or added to by parol. The contract in this case was for the delivery by the defendant to plaintiffs of a certain quantity of wood, which was to be manufactured into charcoal by plaintiffs, and then delivered to the defendant. In-the settlement between the parties, the defendant was to be allowed for the wood at the rate of one dollar per cord, and the plaintiffs were to be allowed for the charcoal at the rate of eight cents per bushel. The defendant agreed in the written contract to pass credits from plaintiffs “ on their books for all labor performed in their coal contract, and when the contract is completed to pay' them, their hands, and coal haulers, the full amount due them.” The defendant was to furnish all coal beds, said beds to be returned to them on the completion of the contract. By a further provision, “ all cookery utensils and supplies, and all tools and property of every description used in the performance of this contract, received from this company (the defendant), and remaining unpaid for, shall not be subject to sale or other disposition by said parties of the second part,” etc.

It seems plain from this description of the contract that it was not a contract of sale, and hence that it was not within the Statute of Frauds. (Goodred v. Binney, 115 Mass. 450; Hight v. Repley, 19 Maine, 137; O’Neil v. New York Mining Co., 3 Nev. 141; 3 Wait’s Actions and Defenses, 514; 7 Wait’s Actions and Defenses, 49.)

The contract not being one required to be in writing, it might be altered by parol, and the written contract and the verbal alterations stand as one contract. (Bishop on Contracts, Secs. 643, 645, 647; 7 Wait’s Actions and Defenses, 377.)

The verbal contract proven in the Court below conforms to the contract averred in the complaint, and there was no error in receiving the same.

The judgment of the Court below is affirmed.

We concur: John P. Hoyt, Associate Justice.

S. C. Wingard, Associate Justice.