Riley v. Melquist

Reese, Ch. J. This action was instituted in the county court of Douglas county. Upon trial a judgment was rendered in favor — 480 — of defendant in error, plaintiff there, from which plaintiffs in error appealed. The cause was tried in the district court, resulting in a similar judgment; and defendants now bring the cause to this court by proceedings in error. It. is alleged in the petition that defendant in error, who was plaintiff below, entered into a contract with the city of Omaha, for curbing and guttering a portion of Ninth street in said city, and that on the 29th of March, 1884, in consideration of $1,000, he assigned his contract to plaintiffs in error. Five hundred dollars of the consideration was paid in cash, the other $500 to be paid when the contract was completed, and accepted by the city. It is alleged that the work was completed and accepted on the 1st of October, 1884, but that plaintiffs in error had refused to pay the unpaid part of the purchase price of the contract. By the answer, the assignment of the contract to plaintiffs in error is admitted, but it is alleged that, as an inducement to plaintiffs in error to take an assignment of the contract, defendant in error represented and guaranteed to them that certain stone to be used for curbing and guttering could be purchased in Omaha at the rate of 18 cents per lineal foot, for what is called park curbing, and 25 cents for curb-stone; and that in case said stone could not be purchased for such prices, defendant in error would furnish the same or pay to plaintiffs in error the difference, in case they had to pay more; and that, relying upon said guarantee, plaintiffs in error took the assignment and entered upon the contract. But that they were unable to purchase the stone at the prices named, and upon notice to defendant in error he failed to furnish the same, and that they were compelled to pay a greater price, by which they were damaged in the sum of $2,057, which they sought to set off against plaintiff’s demand. It is alleged that the assignment was made on the 24th of March, 1884, a copy of which alleged assignment is attached to the answer as an exhibit, and is as follows: — 481 — “Omaha, Neb., March 24, 1884. In consideration of one dollar to us in hand paid by J. E. Riley & Co., of Omaha, Nebraska, the receipt of which is hereby acknowledged, we hereby agree to sell, transfer, and assign to the said Riley & Co. the contract awarded to us, for curbing and guttering Ninth street, city of Omaha, for the sum of one thousand dollars ($1,000), one-half cash, and one-half when contract is completed (and paid for), and we hereby guarantee that curb-stone will be furnished, F. O. B., Omaha, for 25 cents per lineal foot, and parking curb at a price not to exceed 18 cents per lineal foot. It is mutually agreed and understood that in case the said stone (curb and parking curb) are not furnished by the U. P. R.. R. Co. for the prices above mentioned, we shall furnish the same to the said Riley & Co., or pay them the difference, in case they have to pay more for the material needed. “Benj. Melquist & Co.”' To this answer a reply was filed, by which defendant in error alleged that he did sign the agreement with plaintiffs in error, dated March 24, 1884, but that his signature thereto was obtained by fraud and misrepresentation on the part of plaintiffs in error; that the same was written by plaintiffs in error and pretended to be read to him by them, and that he trusted to the true and correct reading of the contents by plaintiffs .in error, but that in reading the same, plaintiffs in error intentionally omitted and avoided reading ‘that part referring to the guarantee of prices; that he had no knowledge at that time of the meaning of the letters “F. O. B.” (free on board), and that the contract was not consummated until the 29th day of the same month, when another assignment and written contract was entered into between them; that at that time plaintiffs in error presented a contract containing substantially the same guarantee, which defendant in error refused to sign; that said contract was then destroyed and another — 482 — one written by plaintiffs in error, in which a reference was made to certain other agreements before that time entered into, but that the contract was prepared and signed in a hurry, was read to defendant in error by plaintiffs in error, and in the reading of which plaintiffs in error again omitted the reference to the prior agreements. The assignment and contract made upon the 29th of March, was as follows: “ Omaha, Neb., March 29th, 1884. In consideration of one dollar, to me in hand paid by J. E. Riley & Co., the receipt of which is hereby acknowledged, I hereby sell, assign, transfer, and deliver to said J. E. Riley & Co., a certain contract awarded to me by the city of Omaha, Feb. 29th, 1884, a.nd the said Riley & Co. are hereby entitled to all emoluments and profits arising under the said contract, by whomsoever prosecuted. “This assignment is made agreeable and in conformity to certain other agreements heretofore entered into with reference thereto, in which are stipulated considerations of transfer, time of payment, etc., which, when such payment has been made, and suitable bond executed and delivered, I agree to place the said Riley & Co. in the full possession of the said contract, with full power to go on and prosecute the said work, without hindrance, to completion. “Benjamin Melquist. “F. B. Johnson, Witness to signature.” The questions involved in the case before us are, to a great extent, questions of fact, peculiarly for the jury to determine, and as has been often said, we cannot undertake a re-examination of questions of fact upon conflicting testimony. The jury, by their verdict, have said that the theory presented by plaintiff below was the correct one, and with their finding we cannot interfere. This may have been upon the idea or theory that the first assignment, dated March 24th, was obtained by fraud, and did not represent the actual contract, or that the contract was in fact not made — 483 — until the 29th, and that the agreement of the 29th superseded that of the 24th. In either case, the verdict would have to stand. Some objections are made to the rulings of the trial ■court, in the admission and rejection of testimony, which we will briefly notice. It is shown by the evidence that there was considerable of conversation between the parties to the suit, prior to the execution of the assignment, as to the probable cost of stone in Omaha. That both parties filed bids with the board of public works upon this proposed improvement. The bid of defendant in error being for “curbing, furnishing, and setting, per lineal foot, $1.19.” For “Two foot gutter and six inch park curbing, per lineal foot, $1.10,” to be made of Colorado sandstone. For the same material, plaintiffs in error filed a bid of $1.29 and $1.54, respectively. There appears to have been ample testimony introduced that, at the time of making of the bids, and at the time of the subsequent assignment of this contract to plaintiffs in error, both parties were acquainted with the cost of stone, and that they together went to the office of the general freight agent of the Union Pacific Railroad Company and inquired as to prices. This latter testimony was introduced by defendant in error, of which plaintiffs in error now complain. It is claimed that this testimony was irrelevant and incompetent, because it was not shown that the freight agent nor the telegraph operator, to whom reference is made, knew anything about the prices of stone. Conversations with the general freight agent were had in the presence" of plaintiff and defendants. In that conversation they were' referred to the telegraph operator, who had received a telegram from the superintendent of quarriesj in Colorado, giving prices of stone at the quarries. By this the knowledge of the parties was shown of the impossibility to furnish stone in Omaha at the prices named in the agreement made March 24th. As bearing upon the — 484 — question of deception, and as sustaining the theory of the case as presented by defendant in error, such testimony was competent. A number of exceptions of the same character are strongly urged upon, the consideration of this court. We have carefully read the briefs and the whole record, and must dismiss this part of the case with the statement that we have been unable to find any such prejudicial error in the record, as would require a reversal of the judgment. Objection is made to instructions given to the jury by the court, and to the court's refusal to give those asked by plaintiffs in error. There were nine instructions given by the court, on its own motion. Seven of these are now attacked as having been erroneously given. Plaintiffs in error presented ten instructions, none of which were given. The rulings of the court, in refusing to give eight of Avhich; are iioav assigned for error. It must be apparent that a separate examination and discussion of each of these instructions cannot be here entered upon without extending this opinion to an unreasonable length, and it must be omitted. These instructions have been carefully read and examined in the consultation room, by all the membei’s of the court, and it is agreed that no error Avhich calls for the reversal of the case is found. The instructions given by the court on its oavu motion fairly and reasonably presented the case to the jury, by the application of proper legal rules to the evidence. The issues involved in the case, which were feAV, were sufficiently stated. When taken as a whole, no valid objection can be found to them. Those requested by plaintiffs in error w'ere more elaborate and covered the same ground, and Avhile they might have all been given Avithout violating any legal rule, yet they would have left the ease in substantially the same condition as it was when submitted to the jury. It is insisted that the verdict of the jury is against the clear weight of evidence. In support of this contention, — 485 — quite a logical argument is presented by counsel for plaintiffs in error, but upon a careful examination of the whole case we cannot so hold. The judgment of the district court is therefore affirmed. Judgment affirmed. The other judges concur.