Cameron v. Hart

Bond, J. — This action was begun before a justice on the following statement: “J. S. Cameron and B. Man, account against Dayid ‘A. Hart for (hauling) 82,604 feet (of logs) at $2 per thousand feet, amount, $57.08. “J. S. Cameron.” Except that the word hauling was omitted. After trial and judgment for plaintiffs the defendant appealed to the circuit court, where plaintiffs amended their statement by interlining therein “ hauling,” and thereupon the case was tried and a verdict and judgment rendered for plaintiffs in the sum of $57.20, from which defendant has appealed to this court. The evidence on the trial was conflicting, and presented two theories of the case. The testimony of the two plaintiffs and one Charles Porter was to the effect that defendant employed plaintiffs to haul lumber for him at the price of $2 per thousand feet, and that the amount, of lumber sued for was hauled by plaintiffs under this agreement and delivered at Balks mill. On the other hand the defendant and two other witnesses testified to the effect that he sold the lumber sued for at $1.50 per thousand (including cutting), and that plaintiffs then sold the lumber for $3.50 per thousand to one Ball who paid defendant fifty cents per thousand for the lumber. Witness Ball also testified that he paid plaintiffs for the lumber partly in supplies while they were delivering the lumber, and in part by giving them credit on accounts they were owing before commencing the work. This statement was contradicted by plaintiffs, one of whom claimed that the supplies furnished him were not on account of this lumber, and that Ball owed him [145] $200 or $300. The other stated that what he recovered in this suit was to go to Ball in payment of an account in his favor against this plaintiff. The court instructed the jury as follows: “The court instructs you, gentlemen of the jury, that, if you should believe from the testimony in this cause that the defendant contracted with the plaintiffs to haul logs from his clearing to the tram, and was to pay them therefor at the rate of $2 a thousand feet, then you should find a verdict for the plaintiffs and assess their damages in such sum as you believe the plaintiffs are entitled to from the defendant for such hauling, and not to exceed the sum of $58. “If you believe from the testimony that there was no such contract between the plaintiffs and the defendant, but that the defendant sold the timber to plaintiffs, and that plaintiffs sold the timber to witness Ball, then your verdict should be for the defendant. The burden of establishing the case by the greater weight of the evidence rests upon the plaintiffs. “You are the sole judges of the weight of the evidence and of the credibility of the witnesses, and if you believe that any witness has willfully sworn falsely as to any material fact in the case, then you are at liberty to reject the whole or any part of the testimony of such witness.” The first assignment of error is that the statement fails to state a cause of action. The statement was defective and uncertain as filed in the justice’s court, but it was rendered sufficient by the amendment in the circuit court when the word “hauling” was interlined therein. This amendment did not state a different cause of action from that filed before the justice; it merely rendered “definite and certain” what was the cause' of action contained in the statement. The [146] amendment was therefore proper. R. S. 1889, sec. 6345. Nor is there any merit in the contention that there was no evidence to go to the jury. Appellant’s abstract is very imperfect in its recital of the evidence. The transcript, however, does show that there was substantial evidence tending to prove respondent’s right to recover under proper instructions. Appellant complains that the first instruction, supra, given by the court, authorized a recovery for ninety-two cents more than was claimed in the statement of respondent. Under this instruction the excess of the verdict over the amount sued for was only twelve cents. The instruction was therefore a harmless technical error, and the excess of recovery is too small to authorize us to direct a remittitur. It is a proper instance for the application of the maxim, Be minimis non cwrat lex. Appellant’s last point is that the court erred in the instruction, to the effect that the jury might disregard the testimony of any witness if they believed he had willfully sworn falsely as to a material fact. The objection made to this instruction is that it cast discredit on the testimony, and worked injury to appellant. There was a direct conflict between the witnesses, —three on each side — and the testimony was irreconcilable. We do not think that the judge who presided at the trial, and who was therefore better qualified to “determine the propriety of giving or refusing such an instruction,” committed any error in giving the instruction in question under the circumstances shown in this record. , There is, however, an objection to the instructions given by the court, which necessitates the reversal of this case. There was some evidence that there was a [147] payment to one of the parties with the consent of the other. This issue should have been submitted to the jury. Since it was completely ignored in the instructions, the judgment herein must be reversed and the cause remanded. It is so ordered. All concur.