Northern Gas Co. v. El Rancho Verde, Inc.
Northern Gas Co. v. El Rancho Verde, Inc.
Opinion of the Court
delivered the opinion of the court.
Defendant filed an answer, admitted the contract that was made at the rate of $523.21 and $498.21 above mentioned; that the gas company installed the furnaces as required under the contract; and that it was paid the sum of $15,025 by reason of which there is due to the gas company the sum of $10,137.29 and the sum of $798.09.
The case was tried to the court with a jury and the jury returned a verdict for $3,041.57, being the total amount claimed by the plaintiff except the sum of $500 demanded by the plaintiff for supervision, of which, as the court instructed the jury, there was no evidence. A judgment was entered in accordance with the verdict of the jury, and from that judgment the gas company has appealed to this court.
1. El Rancho Verde claims that it advanced for materials and labor during August and September the
“Where the promise to pay the debt of another is not the chief purpose of the transaction in which it inheres, and a substantial and valuable consideration therefor inures directly to the benefit of the promisor, * * * the promise does not fall within the statute, and no writing is necessary to support it.* * *”
We think that statement is applicable in the case at bar and the objection above mentioned is overruled.
2. Before proceeding further in examining the correctness of the amounts of money chargeable to the gas company, we should mention the fact that during the time of the installation of the furnaces Benny Reese had two contracts, one for the installation of
Henry De Georgio was the bookkeeper and accountant for the plaintiff El Rancho Verde and he was the main witness for the plaintiff in determining as to what amounts were due the plaintiff from the gas company. He testified that he was unable to segregate these various amounts which were thus paid for labor and materials on behalf of Benny Reese. So he took the total which was thus paid and then determined the amount of money that was chargeable directly to the plaintiff and subtracted that from the total, thus arriving at the amount that was due to the plaintiff from the gas company. He submitted a summary of the totals. The total for labor, payrolls and materials amounted to $16,890.23, aside from $1,962.94. He also testified that the total amount that was directly chargeable to the plaintiff El Rancho Verde was the sum of $5,382.20. He submitted the following table:
*103 “Total payments made by El Rancho Verde for Wyoming Sheet Metal [Benny Reese] : Per Attached .$16,890.23
“Employment Taxes and insurance. 505.98 10% of Payroll ($5,059.87) (covers FÓAB, FUTA: IJnemp. Comp;
Workmen’s Comp and liability insurance) “Materials transferred from previous project to
Wyoming Sheet Metal . 1,962.94
Supervision . 500.00
Total expended by El Rancho Verde for Wyoming Sheet Metal .$19,859.15
“Work contracted to Wyoming Sheet Metal, per their statement “50 - Water Heater .$ 375.00
Extra duct work on Groh House . 382.00
50' - 6" pipe . 18.75
12 - 6" Ells. 8.20
1 Access door cover for 1 house . 18.50
1 Access door cover for Groh House . 24.50
17 Access Door covers. 270.00
2240' Drip Cap . 112.00
1400' Drip Cap . 70.00
76 Corners . 15.20
1 Flower box - Groh House.. 9.50
22' Seamed Flashing Groh House . 7.40
Vent H. Water Heater Groh House . 32.50
Vent Gas Log Fireplace . 26.75
112 Corners for siding. 26.60
4300' Cutter. 1,935.00
Gutter for Mentink. 106.80
Furnace and installation . 438.75
*104 Furnace and installation . 518.00
Furnace and installation, Large House . 986.75
“Total . 5,382.00
“Excess to be applied to Heating job . $14,476.95”
It further appears that the plaintiff paid to the gas company the sum of $15,025 and that the amount due to the gas company for the 49 furnaces and one special furnace was the sum of $25,960.38. He thus arrived at the total amount due as follows:
Amount paid to gas company.$15,025.00
Excess to be applied to the heating job. 14,476.95
Total .$29,501.95
Subtract the amount under the contract and for the special furnace. 25,960.38
Balance due the plaintiff from the gas company .$ 3,541.57
It may be noted that the jury returned a verdict for this amount less $500 which was charged for supervision but which the court disallowed. This summary above mentioned was introduced in evidence as Exhibit 12.
Defendants objected to the introduction of Exhibit 12 by reason of hearsay, and this objection will be discussed later in the opinion. Meanwhile, it might be of assistance to point out items about which the existing evidence leaves various items doubtful.
b. On or before December 1, 1954, some of the checks given by the plaintiff to Benny Reese for labor “bounced”, that is to say, they were found to be worthless, so the plaintiff El Rancho Verde made these checks good in the sum of §382.68. That amount, of course, was merely a duplication of the labor which was paid and, while that amount is a proper charge against Benny Reese, the plaintiff undertook to pay for the labor and we are unable to see that it should be chargeable to the gas company.
c. The plaintiff paid the sum of §200 for the rental on the shop occupied by Benny Reese. We are unable to see why this amount should be charged to the gas company. The item was paid on April 8, 1955, while according to Mr. De Georgio’s testimony Benny Reese left Rawlins in February 1955.
d. The figures of the total amount of money for material and labor advanced to Benny Reese by the plaintiff include §41.45 to the Lincoln Highway Service, §16.76 to the Rawlins Elevator, §29.83 to the Times Stationery, §83.66 to the Mountain States Telephone Company, §108.90 to Leroy’s and §36.28 to Carbon County, a total of §316.88. On their face these items were not chargeable to the gas company. There may be explanation for the items, however, in the further retrial in this case. Mr. De Georgio tried to explain
e. The material turned over as above mentioned to Benny Reese by the plaintiff valued at $1,962.94 and the material that was bought and paid for by the plaintiff apparently constituted all of the material on hand for the work to be performed on the furnaces and for the plaintiff itself. The evidence shows that no material was left over when the furnaces were finally installed. There is some evidence that Benny Reese installed some furnaces for other parties, so it apparently follows that part of the material heretofore mentioned was used in the installation of the furnaces for these parties. The amount of labor and material expended on these outside contracts would not be chargeable to the gas company and further evidence should elucidate the matter.
f. In the amount mentioned in the summary above set out as chargeable directly to the plaintiff of $5,-382.20, we find no item of labor which was performed in connection with the gutters and downspouts. Mr. De Georgio testified that the furnaces mentioned were outside of the contract involved in this case. If any item of labor for downspouts and gutters was includ
g. The evidence of Mr. De Georgio shows that part of the material used by Benny Reese during the fulfillment of the contract here in question and paid for by appellant consisted of equipment. The kind of equipment or the value thereof does not appear in the record, at least it is not clear to us. It would seem that ordinary equipment used by a subcontractor could not be chargeable to the party for the benefit of whom it is used. Take, for instance, work performed for someone by means of a bulldozer. It would hardly be claimed that the cost of such bulldozer should be paid by the party for whom the work is done. The subject is somewhat obscure. It has not been argued by either party and we refrain to express a definite opinion on it. We might mention in that connection that Mr. De Georgio testified that the plaintiff obtained a bill of sale for the equipment and ultimately sold it for $500. He wondered whether or not this amount should have been credited to the appellant.
We now come to one of the main contentions of appellant herein, namely, that Exhibit 12 was inadmissible because it was based on hearsay testimony or largely so. Exhibit 12 is a summary of the various items involved in the case. Mr. De Georgio testified that the summary was true and correct so far as he knew and the items were paid in the regular course of business. The witness issued the various checks paid for labor and material and that far the testimony was primary and based on the witness’ own knowledge, though, perhaps, it would have been better if the checks them
“* * * We know of no reason why a party may not make up a statement in writing of debits and credits covering any transaction made the basis of his suit, testify to the correctness of each item, and introduce the statement in evidence.* * *”
The point was discussed at length and elaborately by Mr. Justice Harnsberger in the case of Ruegamer v. Rocky Mountain Cementers, Inc., 72 Wyo. 258, 263 P.2d 146.
But that does not meet the point involved in this case. Mr. De Georgio was not able to testify to the correctness of the various items involved in the item of $16,890.23 in view of the fact that according to his testimony the main information he received was from Benny Reese. Appellee contends that this was no objection to the admissibility of Exhibit 12 and cites in
“(4) The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter persons, there is no objection to receiving that entry under the present Exception, verified by the testimony of the former person only, or of a superior who testifies to the regular course of business, provided the practical inconvenience of producing on the stand the numerous other persons thus concerned would in the particular case outweigh the probable utility of doing so.”
This statement of Wigmore’s was considered in the case of The Spica, 2 Cir., 289 F. 436, 443, where the court, among other things, stated:
“* * * but we also recognize as an admissible excuse for nonproduction mere inability by reasonable effort to find the man or men who could speak with personal knowledge.* * *
“If, then, an entry be offered which is proved as part of a regular system, which is substantially cotempo-raneous (sic), and concerning which no motive for falsification or probability of negligent error is observed, there exists that reasonable guaranty of trustworthiness which is the second ground of admission of regular entries.* * *”
These authorities do not quite meet the situation in this case. Benny Reese was the main witness who could have testified to the correctness of the items involved and he was not produced as a witness. It is true the testimony shows that he left Rawlins in February 1955, but there is no showing that any effort
Reversed and remanded.
Reference
- Full Case Name
- NORTHERN GAS COMPANY, A WYOMING CORPORATION, (Defendant below) v. EL RANCHO VERDE, INC., A WYOMING CORPORATION, (Plaintiff below)
- Status
- Published