Shallis v. Fiorito , 41 Idaho 658 ( 1925 )

From a consideration of this cause on rehearing, I am unable to concur in either the original opinion or the opinion on rehearing. Since the majority opinions are based on an incorrect understanding of the facts, it is deemed necessary to state my views at length. During 1922 appellants were engaged in constructing a concrete paved highway from the city of Coeur d'Alene to the boundary line between Washington and Idaho. They contracted with Lee and Paus to haul the necessary sand and gravel for constructing the highway for sixty cents per yard. Lee and Paus furnished a $10,000 bond conditioned for the performance by them of the obligations of the contract. Thereafter they assigned to respondent all sums of money to become due them. Lee and Paus abandoned the contract and quit the work, but before doing so they hauled 5,158 cubic yards, for which respondent claims payment at the contract price of sixty cents per yard, $3,094.80. Lee and Paus had become indebted to certain persons for labor and supplies. After they abandoned the work appellants engaged the Cascade Investment Company to haul the balance of the sand and gravel, and paid out certain sums for labor and supplies furnished Lee and Paus.

In paragraph five of the affirmative defense appellants alleged that, in the completion of the contract undertaken andabandoned by Lee and Paus, they had employed and paid Materne Brothers $4,122.25, A.L. Larson $486.50, Sam Theis $1,258.10, C.E. Deschamp $938, T.B. Laidley $581, W.D. Boyles $444.50, amounting to $7,830.35, and had also contracted with the Cascade Investment Company to haul the remainder of the sand and gravel necessary to complete the work. They alleged that the amounts paid out by them for services and supplies furnished Lee and Paus and to haul the balance of the sand and gravel exceeded by more than $10,000 (the amount they received on the bond), the amount for which Lee and Paus had contracted to do the work, and that they were therefore not indebted to respondent in any sum whatever.

Both sides admit that the evidence shows that the total amount of sand and gravel necessary for the construction of the highway was 34,741 cubic yards and that of this total Lee and Paus delivered 5,157 yards. There was furnished appellants, therefore, to complete the work after Lee and Paus quit, 29,584 yards. The total amount paid to the Cascade Investment Company was $26,755.20, which at ninety cents per yard would pay for hauling 29,728 yards. The sand admitted to have been hauled by Lee and Paus and that admitted to have been hauled by the Cascade Investment Company equals (and as a matter of fact exceeds by 144 yards) the total amount required for the entire work. This conclusion is important in view of certain contentions made by appellants which I am about to notice.

In paragraph five of the affirmative defense, as has already been shown, in addition to the payment to Cascade Investment Company, it was alleged that a total of $7,830.35 was paid various persons to complete the work after Lee and Paus had abandoned it. There was no evidence showing the amount of sand and gravel hauled by any of the persons who were alleged to have been paid $7,830.35. The court's instruction to the jury to disregard these items was justified in view of the fact that Cascade Investment Company was paid for hauling all the sand and gravel required to construct the highway, not hauled by Lee and Paus. If appellants paid others for doing the same work for which the Cascade Investment Company was paid, they cannot charge such excess payments to Lee and Paus.

During the trial of the action appellants attempted to prove that they had paid to Materne Brothers $4,122.25 for servicesrendered Lee and Paus while they were hauling the sand and gravel. This was objected to on the ground that it was not within the issues and the objection was sustained. Thereupon appellants amended paragraph four of their answer and thereby alleged that while Lee and Paus were hauling sand and gravelthey became indebted to Materne Brothers in the sum of $4,000 which appellants were forced to and did pay. The fact was not seriously controverted. The court instructed the jury thatwhile Lee and Paus were hauling sand and gravel, they became indebted to Materne Brothers in the sum of $4,000, and that appellants had paid Materne Brothers said sum of $4,000, no part of which had been paid by Lee and Paus; and in instruction number eleven the jury was told ". . . . that defendants were entitled as an offset against any amount that might become due to Lee and Paus for their work in hauling sand and gravel any sum (paid by defendants). . . . in payment of labor bills or material bills incurred by Lee and Paus. . . ." It is plain to my mind, therefore, that the jury was properly instructed with respect to the amounts they should allow defendants as an offset. The instructions, as a whole, were plain and the jury could not have been misled. The testimony was conflicting as to whether or not ninety cents per yard, paid by appellants to the Cascade Investment Company for hauling the remainder of the sand and gravel, was a reasonable sum for such work. The jury was justified in finding that ninety cents per yard, testified to by witnesses for appellants, or eighty cents, testified to by witnesses for respondent, was a reasonable sum for such work. On either basis the verdict may be sustained, conceding at the same time that the jury allowed the $4,000 item as an offset.

The majority holds that the court erred when it instructed the jury to disregard the item of $4,122.25 claimed in paragraph five of the affirmative answer. Any other instruction with respect to this item would have been erroneous. The trial court would have plainly erred had it instructed the jury in accordance with the views of the majority; and such an instruction, if followed by the jury, under the admitted facts in this case, would have resulted both in allowing appellants an offset of $4,000 for services rendered by Materne Brothers to Lee and Paus while they were performing the contract, and in allowing another offset of $4,000 for the services rendered by Materne Brothers after Lee and Paus quit. Four thousand dollars was all that was ever earned or paid Materne Brothers, and the trial court instructed that such sum should be allowed.

The trouble with the majority is in not distinguishing between the $4,122.25, alleged to have been paid to Materne Brothers (in paragraph five of the affirmative answer) for sand and gravel hauled after Lee and Pous quit the work, and the$4,000 alleged to have been paid to Materne Brothers (the amendment to paragraph five of the affirmative answer) for hauling sand and gravel before Lee and Paus quit the work. The first of these the court took from the jury because there was no evidence to sustain it and also because the Cascade Investment Company was paid for hauling all the sand and gravel not hauled by Lee and Paus. The second item the court properly left with the jury and instructed that it should be allowed appellants as an offset. I submit also the judgment is reversed by the majority on a point not raised by appellants. Appellants admit that instruction number seven, in so far as it told the jury to disregard the item of $4,122.25, was proper. On page twenty-four of appellants' brief, in discussing instruction number seven, the attorneys for appellants, with respect to the item of $4,122.25, say ". . . . we have no fault to find with the instruction. . . ."

Givens, J., concurs in the dissenting opinion of Justice Wm. E. Lee.