Perry v. Wolpert

PRESTON, J.

The judgment is affirmed.

Appeal by defendants, P. C. Wolpert, P. C. Wolpert, doing business under the name and style of the Wolpert Lumber Company, C. D. Plum, as manager of the Wolpert Lumber Company, and the Wolpert Lumber Company, from a judgment against them and in favor of plaintiff, in the sum of $2,683.18, interest and costs, upon the main ground of insufficiency of the evidence to support the findings and failure of plaintiff to secure judgment against other parties defendant. An opening brief was filed by appellants on February 16, 1928, to which respondent has made no reply whatsoever. However, as there is ample evidence in the record to uphold the findings and judgment, we are Unable to sustain the appellants in their contention.

Certain persons, some of whom were admittedly employees of appellants and others alleged by appellants to have been solely in the employ of defendant Erickson, but all of whom held claims for labor or services performed or materials furnished to defendants, assigned their claims to plaintiff, who thereupon instituted this action in their behalf to recover the respective amounts due each of them. The complaint alleged twenty-eight distinct causes of action against

[743]

defendants, but after it was filed a number of the employees of Wolpert Lumber Company were paid in full and accordingly the counts covering their claims were dismissed. Payments were also made by said company on account of other causes of action and credit duly given therefor by plaintiff. At the time of trial it was admitted that still other counts stated just claims against said defendant company in the aggregate sum of $889.55 and it was stipulated that judgment for that amount might be entered thereon.

Appellants, being the only defendants who appeared or answered in the action, thereupon disputed the claims upon which the remaining counts were based, aggregating $1787.63, upon the ground that the claimants were never in their employ but were employed by defendant Erickson, an independent contractor. The court, however, upon evidence sharply conflicting, found against them in this behalf. It found that each of said claimants had rendered and performed labor and services for appellants in the capacity of assisting them in the manufacture of lumber, at their special instance and request, for which appellants had promised and agreed to pay the sums stated in said claims. The judgment rendered against them, therefore, included in addition to said stipulated amount the said sum of $1787.63. It is only the inclusion of the latter award in the judgment that defendants protest upon this appeal.