Riedy v. Bidwell

Two actions were brought, one by Elizabeth Riedy and Tom Riedy, husband and wife, against George M. Bidwell, and the other by Charles Cook against George M. Bidwell. The former is to recover $12,250.92, based upon two causes of action, one for services alleged to have been rendered by plaintiff Elizabeth Riedy and the other on an assigned claim of E. M. Tinney, both causes of action being based upon the same ground.

The contract alleged is the same in the case of Elizabeth and Tom Riedy against Bidwell; in the assigned cause of action by Tinney to Elizabeth Riedy, and in the action of Cook against Bidwell, the contract alleged being that on or about February 1, 1919, defendant entered into an agreement of employment with Elizabeth Riedy, Charles Cook, and E. M. Tinney that if they would stay and help him run and manage the business, he would pay and give to each of them the amount they were then receiving monthly, and in addition thereto he would pay and give to them all net profits which they "would earn in the business over and above six per cent on the investment, after deducting all the expenses connected with the running of the business. The cases were not consolidated but were by stipulation tried together and both appeals are presented under one record in conformity with the trial of the case and pursuant to stipulation.

This is the second trial of the actions. In the first trial the court found in favor of plaintiffs upon the contract but held the contract void. On appeal, however, the appellate court held the contract valid and reversed the judgment. At this trial and before any evidence was introduced the plaintiffs contended that the only issue the court had a right to try was the amount due under the contract; that the other issues had been determined by the former trial court, and the only issue undetermined was the amount due, and the court could not under the law of the case determine whether or not there was any contract, as that had already been-determined in favor of plaintiffs. The court overruled plaintiffs’ contention, denied their motion to limit the issues to the amount due and ordered the issues at large to be tried. The second trial was before a jury, which rendered a special verdict in favor of defendant George M. Bidwell in each case, and which special verdicts were adopted by the court in its findings, and judgments were rendered thereon in favor of defendant.

There was a stipulation entered into between counsel for the respective parties that so far as the jury was concerned there was only one issue to be presented to them,

Appellants urge that the court erred in setting the case at large and permitting evidence to be received on the question as to the existence of a contract; that there was no evidence so as to materially change the issue to entitle the court to put the case at large; the court erred in instructions to the jury; the court erred in holding the contract sued on one entire contract; the court erred in permitting the introduction of the letter written by E. M. Tinney and permitting Tinney to testify over objections of plaintiffs; the testimony of Woodruff was inadmissible against appellant Riedy, and that the motion of appellants for directed verdict should have been granted.

The first two contentions regarding setting the case at large and that there was no evidence to materially change the issue so as to entitle the court to put the case at large, are without merit. In reversing the case (Riedy v. Bidwell, 70 Cal. App. 552 [ 233 Pac. 995 ]) the court merely ordered “the judgment is reversed.” The effect of this unqualified reversal was to remand the ease for a new trial on all the issues presented by the pleadings (Falkner v. Hendy, 107 Cal. 49 , 54 [ 40 Pac. 21 , 386]), the decision upon the former appeal being the law of the case when the evidence does not warrant a different conclusion (McGraw v. Friend & Terry Co., 133 Cal. 589 [ 65 Pac. 1051 ] ; Adams v. Thornton, 5 Cal. App. 455 [ 90 Pac. 713 ]). The rule of law of the case has no application to facts, and it is settled beyond controversy that the decision of an appellate court on questions of fact does not become the law of the case (Mattingly v. Pennie, 105 Cal. 517 [ 45 Am. St. Rep. 87 , 39 Pac. 200 ] ; Moore v. Trott, 162 Cal. 273 [ 122 Pac. 462 ]). Here, however, it cannot be contended that the findings of the trial court are the same as the findings of the court on the former trial, and no assignment being made that the evidence is insufficient to support the findings and our attention not being directed to the fact of the insufficiency of the evidence, this court

As to appellants’ contention that the court erred in holding the contract sued on one entire contract and not divisible, it may be said that from a reading of the contract alleged it appears that there is in fact only one contract. They bear the same date—February 1, 1919— and each alleges that if Elizabeth Riedy, together with Charles Cook and E. M. Tinney, would stay and help defendant run and manage his business he would pay and give to Elizabeth Riedy, Charles Cook, and E. M. Tinney the amount which they were then receiving and in addi

It may likewise be said that there is no merit in appellants’ contention next set forth that the court erred in permitting the introduction of the letter written by E. M. Tinney and permitting Tinney to testify over the objection of plaintiffs. Tinney was an assignor of plaintiff Elizabeth Riedy, having assigned his claim to her for the purpose of bringing suit, and therefore his statements against his interest are admissible in a suit by the assignee on his assigned claim. In Bollinger v. Bollinger, 153 Cal. 190 , 195 [ 94 Pac. 770 , 772], in a case similar to the one presented here, the court says: “His testimony, if true, amounts to an admission by David that he had no contract with George, and this drags down the very foundation of the cause of action here pleaded, and the evidence was material and important,” and section 1870 of the Code of Civil Procedure provides: “In conformity with the preceding provisions, evidence may be given upon a trial of the following facts . . . Subdivision 5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its existence. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.”

The court did not err in admitting the testimony of the witness Woodruff against appellant Riedy above quoted, for, as has been said, the allegations of the complaint show that there existed a community of interest in the contract alleged, between appellants Riedy and Cook, and Tinney, the assignor of appellant Elizabeth Riedy (Tracy v. Colby, 55 Cal. 67 , 70; 1 Greenleaf on Evidence, 172; Code Civ. Proc., sec. 1870).

Appellants complain that the court erred in instructing the jury. The instruction complained of is: “You are further instructed that a witness is presumed to speak the truth. This presumption, however, may be

Appellants urge that the remarks of the court made parenthetically destroy the entire instruction, and that the further vice of the instruction is to take away the right of the jury to determine the testimony for themselves and arrive at the facts. All that the court eliminated from the instruction by its parenthetical remark was “or by evidence affecting his or her character for truth, honesty or integrity,” and as there was no evidence introduced that the character of any witness for truth, honesty or integrity is bad, it was not the duty of the court to instruct the jury, on this question.

Appellants contend that as evidence was offered to contradict the statements made by the witnesses Tinney and Woodruff, the effect of withdrawing from the jury that portion of the instruction stating that the presumption that a witness speaks the truth may be repelled “by evidence affecting his or her character for truth, honesty or integrity” had the effect of stamping the testimony of Tinney and Woodruff with truth and verity. We do not agree with this contention. Furthermore, the court instructed the jury: “A witness may also be impeached by evidence that he has made at other times statements inconsistent with his present testimony as to any matter material to the cause on trial,” and also: “The jury are the sole and exclusive judges of the effect and value of evidence addressed to them, and of the credibility of the witnesses who have testified in the case, and the character of the witnesses as shown by the evidence should be taken into consideration for the purpose of determining their credibility, and the fact as to whether they have spoken the truth, and the jury may scrutinize, not only the manner of witnesses while on the stand, their relation to the case, if any, but also their degree of intelligence.”

The judgments are affirmed,

Tyler, P. J., and Knight, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 13, 1928.

All the Justices concurred.