Guthrie v. J. K. Lumber Co.

1. Were this case a suit in equity, we should be privileged to weigh the conflicting testimony. But as it is an action at law, we must treat the findings of the court as conclusive of every fact found, where there is any evidence to sustain them. Without encumbering this opinion with detail, we will say that there is evidence tending to show that the locomotives, up to a short time before-they were delivered at the place designated in the lease, remained on defendant’s premises at Hamilton Creek, with the actual or implied consent of the receiver, and that he did not expect to receive any rent upon them for that period, so that we have no authority to disturb the finding of the court on that subject. There is also evidence abundantly tending to show that when they were finally delivered to the receiver in February, 1918, the locomotives were not in so good a condition as when they were received by the defendants, reasonable wear and tear excepted, and that it cost the plaintiff $2,100 to put them into such condition, so that we are precluded from disturbing that finding. The question as to the distribution of this expense between the two locomotives will be treated later when we come to consider defendant’s appeal.

2. It would seem necessarily to follow from this finding that plaintiff should be compensated for the delay occasioned by the fact that the locomotives were not usable or rentable during this period. The plain*168tiff claims that the evidence shows that if the locomotives had been in the condition called for in the contract, they could have been rented for $10 each per day, and that this should constitute the measure of his recovery for failure to return them in good repair.

As to defendants’ appeal, so far as it applied to discussion of matters of fact, we will say that each of the findings has some evidence to support it. The objection that the testimony as to the cost of repairing the two locomotives is not separated, but shows only the gross amount, is one of form and not of substance. There was one contract including both locomotives, the performance of which contract was secured by two contemporaneous bonds, each guaranteeing the performance of the contract as to a particular locomotive. Technically, perhaps, as to the surety this gave rise to a separate cause of action upon each bond, although there was but one cause of action against the lumber company for violation of the terms of the lease. It appears from the testimony that the locomotives were repaired as a single job, work being done alternately upon each as convenience dictated, and that no accurate account was kept as to the individual cost of repairing each locomotive. Holbrook, a witness for.plaintiff, was disposed to fix the relative cost at about the same on each locomotive, while Hayes, who was in a position to testify with greater accuracy, estimated the cost to be approximately $500 greater on the “three spot” locomotive than on the “two spot.” This testimony, while only an approximation, was competent, and the finding, while strictly in accord with the evidence so far as it related to the aggregate expense of the repair of both locomotives, would have been perhaps more nearly accurate technically if it had made the segregation in accordance with *169Hayes’ testimony. But if this had been done, it would have availed the defendants nothing. They would still be liable to plaintiff in exactly the same amount as before such segregation. The objection is based upon an unprofitable technicality.

3. In the course of defendants’ testimony it appeared that there had been a conversation between Collins and the defendants, in which the latter claimed that Collins agreed that certain locomotive brasses that had been sent to Zimmerman-Wells-Brown Company should be returned to Blazier Spur; that Collins was to put them on and make certain repairs, and that he was to pay one half of whatever the amount would be, and defendants the other half. Mr. Jones, one of the defendants, stated the alleged agreement as follows:

“I did not take very much part in the conversation, but it was settled, as I had supposed, that some brasses that had been sent down from Hamilton Creek to Zimmerman-Wells-Brown should be returned to Blazier Spur, where the engines were then located, and that Mr. Collins was to make, to put them on and make certain repairs, and Mr. Collins was to stand one half of whatever that amount was to be, and that was fixed as something like one hundred twenty-five or two hundred dollars I forget exactly the amount.

“Q. But that is the substance of the conversation, as you remember?

“A. That was the substance of the conversation.

“Q. Did you hear any claim made at that time by Mr. Collins that you people were liable for any rent for these locomotives or damages because you had been delayed in delivering them, or anything of that kind?

“A. I did not.

“Q. Was that subject brought up?

“A. I don’t think so. I didn’t hear it.”

Ano.ther witness for defendants, Mr. Galloway, relates the conversation as follows:

*170“Q. Now, give the substance of the conversation that took place there, in the presence of Mr. Collins, of course.

“A. First, talking about the condition of the locomotives as they were at that time, and what was necessary to put them in shape satisfactory to Mr. C.ollins to take them back, to receive them, and it seems that Wall had been up there, and Collins, I believe, too, had been up in the country where the locomotives were, and that there were certain brasses which it was thought, which Mr. Kribs and Mr. Jones thought, were in proper shape, the old ones, that Mr. Collins and Mr. Wall said would have to be replaced, and these brasses in question had been originally included in the shipment of parts that Mr. Kribs and Mr. Jones had had sent up there, and the workman, the man who was doing the work, had inspected the old brasses on the locomotives, and had made the report that they were all right and sound, and would not need to be replaced, and had returned certain brasses as unnecessary. And Mr. Wall, I believe, particularly said that they would have to be used, would have to be replaced, and during the conversation the question was asked about how much it would cost to replace those brasses, and workmanship, labor, and the result of it was—I forget exactly how it was led up to, but the result of it was that Collins suggested that if they would return the brasses he would have one of his men put them on, and would stand 50 per cent of the expense of putting them back on.”

The testimony of Mr. Kribs is to the same effect.

It is claimed that this testimony shows an accord and satisfaction for any claims for repairing the locomotives beyond one half of the cost of putting on the brasses, which was estimated at'approximately $200; and the court was asked by defendants to find to this effect; error being predicated on its refusal to do so. There was no plea of accord or of accord and satisfaction, and letters of Collins indicate that the proposed *171agreement was incomplete, and not considered by him as final. The record does not disclose that any attempt was made to amend the pleadings to show accord and satisfaction, which was an entirely new defense, different from any urged in the answer. Collins was alive when the original answer was'filed, and this defense, which it would seem, if true, would have been the very first one to suggest itself to defendants, was not pleaded or suggested during his lifetime; nor was there any intimation when the testimony was offered that it was being introduced for the purpose of showing an accord and satisfaction.

As it was not made an issue in the case, the testimony was inadmissible for the purpose of showing an accord, although it was admissible for the purpose of showing the value of the work and materials necessary to complete the repairs. Had the defendants asked leave to amend, the court would have been entirely justified in refusing to permit such amendment under the circumstances, and especially in view of the fact that the contention was not advanced during Collins ’ lifetime, but seems to have been an afterthought.

4. The findings should be responsive to the issues made in the pleadings, and not simply relative to detached facts which are neither directly nor indirectly involved in the determination of such issues. To treat the answer as amended, so as to introduce accord and satisfaction as a defense, would be to allow the defendant to bring in a new defense after trial, and thus do indirectly what the statutes prohibit doing directly.

5. Moreover, the proof of the alleged agreement is vague and totally at variance with the course that Collins was pursuing as indicated in his letters. His letter of March 14th discloses that a question of defendants ’ furnishing certain brasses and Collins ’ pay*172ment of the expense of putting them on had been under 'discussion, but also that Collins had not waived the matter of having complete repairs made in accordance with his view of the contract, or agreed finally to accept defendants’ proposal as an accord and satisfaction of his demands. Even had accord and satisfaction been pleaded, the evidence fails to establish it as a fact. In short, such a defense has neither been pleaded nor proved. >

The judgment here will be that the plaintiff recover of defendants the sum of $3,760, being the $2,100 found by the Circuit Court and $1,660 damages for the delay occasioned by plaintiff’s loss of the use or rental of the locomotives while the same were being repaired, and the costs of this action in both courts. The cause will be remanded to the Circuit Court with directions to enter judgment accordingly.

Modified.