Molzahn v. Christensen

The following opinion was filed January 7, 1913: Siebecxeb, J. The plaintiffs contend that the court erred in excluding part of the conversations that took place between the defendant and the plaintiffs relating to the work before they had complete plans for the barn, milk house, and the manure pit. The prior interviews are not essential to ascertain what was embraced in the contract finally and actually made. True, some of these prior interviews referred to part of the structures covered by the contract as found by the jury, but they were in the nature of preliminary negotiations and not essential to an understanding of the contract finally made by the parties. The vital question litigated was this: What work and material was embraced in the contract for which the defendant agreed to pay the plaintiffs the sum of $4,946 % These prior conversations had only a very slight bearing on this question, for it appears that the parties thereafter included them in their subsequent negotiations for the erection of a barn. The evidence adduced sufficiently explained what relation these prior negotiations had to the contract finally made, and no substantial injury was done by the exclusion of this evidence. It is furthermore contended that the court erred in refusing to admit a memorandum book as evidence. This book [525] contains entries of estimates of tbe cost of erecting tbe barn. These entries were made bj one of tbe plaintiffs, and they claim to have based their bid for tbe construction of tbe barn upon these estimates. Tbe court permitted one of tbe plaintiffs, while testifying, to use tbe book as a memorandum to refresh bis recollection and to state that plaintiffs’ bid to build tbe barn for $4,946 was based thereon. This, it seems, was all tbe legitimate use that could be made thereof. Tbe entries in this book were not shown to tbe defendant as tbe amount for which plaintiffs would erect defendant’s barn; nor is tbe book in tbe nature of a book of account, containing entries of such transactions between tbe parties. Tbe exception presents nothing to show that appellants were in any way prejudiced by tbe court’s ruling. The next question argued is to tbe effect that tbe appellants were prejudiced by tbe reception of evidence of tbe reasonable cost of the work done and tbe material furnished by tbe plaintiffs in erecting and constructing tbe barn, milk bouse, and manure pit. Tbe purpose of this evidence was to aid tbe jury to ascertain what the contract based on plaintiffs’ bid to do work for $4,946 actually included. We are unable to perceive bow plaintiffs could be prejudiced thereby. Tbe evidence would aid tbe jury in resolving the wide discrepancies in tbe respective claims of tbe parties as to what was tbe actual value of tbe work performed as compared with tbe value of the work tbe parties claimed was embraced in tbe contract. By tbe answer to question 1 of tbe special verdict tbe jury found that tbe minds of tbe parties met as to what work was to be performed and what material should be furnished by the plaintiffs for tbe sum of $4,946, and by question 2 that tbe contract so made by tbe parties included tbe work, labor, and material plaintiffs were to furnish on tbe milk bouse and tbe manure pit. Appellants aver that tbe court erred in refusing to change tbe answer to question 1, for tbe reason that the evidence does not sustain tbe jury’s conclusion that there [526] was a meeting of the minds of the parties that the $4,946 was to be compensation for all work and material furnished by the plaintiffs for the milk house and manure pit as well as for the barn. Counsel argue at length upon the improbability that the parties had any such intention when they •agreed upon this sum. The jury, however, manifestly placed reliance on the facts and circumstances detailed by the defendant, to the effect that, after he had gone over the plans for all three structures, he asked one of the plaintiffs what all this work would cost and that plaintiff a few days thereafter informed him it would amount to $4,946, and that when he accepted this offer it was mutually understood that the cost of the three structures was to be included therein. Under this conflict in the evidence the court properly submitted the issues in the form it did, and this court cannot say that the findings of the jury thereon are against the clear preponderance of the evidence. The court, after verdict, stated, upon the facts it deemed to be undisputed, the result of the trial to be: Plaintiffs’ credit by contract. $4,946 00 For iron, cement, hardware, and waterproofing... 141 02 Total . $5,087 02 Defendant’s credit on casli paid.$4,693 31 Labor of men. 122 40 By unfinished work on barn. 150 00 Total. $4,965 71 $4,965 71 Balance due plaintiffs. $121 31 The court found that defendant’s claim for unfinished work on the manure pit was undetermined, having been omitted from the verdict, and on this account held that the defendant was entitled to a new trial, if he desired one, and therefore gave him the right to elect to have a new trial on account of this error or to submit to judgment against him for $121.31, the balance due plaintiffs according to the account as above stated. Defendant elected to have judgment •awarded against him for such amount. The appellants in [527] sist that the court erred in awarding this judgment, upon the ground that it appears by the undisputed proof that they were entitled to credit for'the additional sum of $549.72 for work and labor performed by them for the defendant and not included in the contract as found by the jury. ' It appears that the plaintiffs submitted a statement to defendant of their claims for extras and the items of credit they allowed him for cash payments, freight paid for him, and for labor defendant had furnished them. The court allowed defendant the item of labor at the sum the appellants admitted they owed the defendant therefor, but allowed plaintiffs nothing for labor which they claim to have furnished the defendant in performing his part of the work of construction. The items plaintiffs claim to have furnished defendant and which they claim there is no evidence to dispute are 975 hours of common labor, $219.12; 246 hours labor by Mr. Lyons, $134; 254 hours labor by Mr. Betz, $88.90; and 359 hours labor by Mr. Gallagher, $107.70. See Exhibit 3. True, there is nothing in the evidence showing that this labor was not performed, but it is not shown that this was labor which the plaintiffs were not to furnish under the contract. The statement, Exhibit 3, containing these items, contains other items for extras which the plaintiffs charged against the defendant upon the theory that all labor and materials furnished by them on the milk house and manure pit were extra work and materials, and we are not informed but that these items or parts thereof include labor which the. jury found was included in the contract and covered by the $4,946. The trial court refused to allow plaintiffs these items or any part thereof, which indicates that it understood they were not indisputably shown to be extras, and it treated them as covered by the contract, so far as shown by the evidence. The burden was on the plaintiffs to show that all or parts of these items were outside of the contract as established by the verdict. This they have failed to do and it cannot be held that [528] ■any prejudicial error was committed against their rights in the matter. We find no reversible error in the record and the judgment must stand. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on March 11, 1918.