Butler v. Bohn

Berry, J. This is an action for a balance due for work and materials. Whether defendants are entitled to a certain $5,000 item of credit is the principal matter in controversy. The trial court finds that they are entitled to it, and judgment was rendered accordingly. The finding Í3 in the form of an itemized statement of indebtedness and credits. As to the latter, the finding is, “that before the commencement of this action, the plaintiffs had been paid by the defendants upon said indebtedness, in money paid to and for them at their request, in merchandise and credits, all sanctioned by them, and agreed to be taken and considered as payments to them, to apply on said indebtedness, the aggregate sum of $57,668.73, viz.: Amount admitted in the amended reply, - - $52,468 73 Disputed payments for which defendants hold plaintiffs’ receipts,...... 5,000 00 Paid experts examining walls of hospital building, 200 00 $57,668 73 As to the second item, viz., that of “disputed payments,” (being the same principally in controversy,) the plaintiffs moved for additional findings, stating “specifically when, where, to whom, and how, or in what manner, and for what purpose, was the five thousand dollars paid.” The motion was properly denied. In case of trial by the court, the statutory requirement is that, “in giving the decision, the facts found and the conclusions of law shall be separately stated judgment upon the decision shall be entered accordingly.” Gen. St. 1878, c. 66, § 242. The facts found are to be separately stated in giving the decision; that is to say, in deciding the material issues of fact in the case. Of course, this'does not mean that the finding shall contain a statement of the evidence, nor (as requested by the plaintiffs’ motion in the present instance) the details of fact which the evidence establishes, but such ultimate facts as are the legal effect of the evidence determinative of the material issues in the ease, and necessary as the basis of a judgment. Van Slyck v. Hyatt, 46 N. Y. 259; Sermont v. Baetjer, 49 Barb. 362; Nelson v. Ingersoll, 27 How. [328] Pr. 1; Bazille v. Ullman, 2 Minn. 110, (134.) Now, as respects the $5,000 item in controversy, this ultimate fact is that it is an item of payment (so described as to identify it) with which the defendants are entitled to be credited on their indebtedness to plaintiffs. This ultimate fact is found, and as respects it the finding is therefore sufficiently specific. 2. The finding as to the $5,000 item is supported by the evidence. Whatever may have been the object of the parties, the testimony, oral and written, certainly tends to show that there was an agreement between them that $5,000 of the contract price of the plaintiffs’ work should be retained by defendants for a purpose for which, for anything that appears, it may have been employed. The agreement for the retention seems to have been repeatedly recognized, and at length completely carried out by the co-operation of the parties. It was equivalent to an agreement that $5,000 of the contract price should be regarded as paid. This would be effectual, at least, as a gift of the $5,000, or an abatement of that sum from the contract price in defendants’ favor. It is not perceived how the suggestion that the agreement was a corrupt one can help the plaintiffs. Upon the facts above stated the agreement is completely executed, and the law leaves the parties (who are in pari delicto) where it finds them. It will give no affirmative aid to either. Sharp v. Wright, 35 Barb. 236. 3. Exhibit P is in this form: “$1,100. Received this fifteenth day of August, 1882, eleven hundred on contract of asylum contract of fifty-five thousand dollars. “St. Peter, August 15, 1882. Butler & Lohse.” This is manifestly a receipt for $1,100, and as such it was properly received in evidence. It might well be regarded as such receipt in the absence of the marginal figures. But these figures remove all doubt. None of the cases cited by plaintiff to the contrary present ■an equivalent state of facts, and besides they relate to commercial paper. As to the question excluded by the court upon the recross-examination of Bohn, we were much inclined, upon the argument at bar, [329] io think the exclusion error; but, upon a car.eful perusal of the testimony and further reflection, we are of a different opinion. So far •as the question inquired “to whom” the $5,000 was paid, we perceive no reason why (if that were all) it would not have been legitimate cross-examination; but in inquiring “for whcd pwrpose” it was paid, it went so far that the court might properly exclude it, in the exercise of a necessary discretion, as not proper cross-examination; for upon this matter of purpose Bohn had said nothing whatever upon his reexamination, and, besides, it was a matter as to which he had been interrogated on his original cross-examination, and as to which it distinctly appears that there was then ample opportunity for plaintiffs to cross-examine him as much as they desired. In these circumstances the exclusion cannot be said to have been erroneous. The other assignments of error on behalf of the plaintiffs do not appear to require special consideration in this opinion. Judgment affirmed.