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Golden v. McKim

April 1914

JAMES GOLDEN, APPELLANT, V. H. A. MCKIM, RESPONDENT.


Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

Dixon & Miller, for Appellant.

J. A. Sanders, for Respondent.

By the Court, Norcross, J.:

This is an action for damages for alleged violation of a written contract entered into between appellant and respondent. For a consideration of $1,156, to be paid therefor by respondent, appellant agreed to excavate to the depth of ten feet and to remove from a certain lot

[37 Nev. 205, Page 206]

on Main Street, in the town of Tonopah, all earth, rock, or other debris caused by such excavation and to construct a stone foundation wall of specified dimensions and of a prescribed character of stone and mortar. The contract was dated April 24, 1906, and it was agreed upon the part of appellant that the work should be completed within thirty days of the date of the contract. The contract also contained the following provision: “And for the true and lawful performance of each and all the covenants and agreements above mentioned, said parties bind themselves each, and to the other, in the sum of eight hundred dollars ($800.00) as liquidated damages to be paid by the failing party.”

Plaintiff, appellant herein, alleged that he had nearly completed the work in accordance with the contract, and would have so completed it within the time agreed upon but for the alleged fact that on or about the 20th day of May, 1906, defendant wrongfully, and without cause, entered upon the premises and prevented plaintiff from completing the work. Plaintiff demanded judgment for the sum of $1,156, the contract price of the work, and in pursuance of certain allegations of damages resulting from injury to his reputation as a contractor, by reason of the acts of defendant, prayed that the $800 liquidated damages prescribed in the contract be allowed therefor, and further, in this connection, alleged: “That the said $800 was and is not a penalty or in the nature of a penalty, but was and is the actual damages liquidated and agreed upon by the said parties to the contract aforesaid.”

Defendant denied the allegations of the complaint, excepting as to the execution of the contract; alleged in a cross-complaint that plaintiff failed to excavate the lot to the depth agreed upon or to construct the wall of the dimensions or with the kind of material agreed, so that he was compelled to further excavate the lot and to remove the wall constructed by plaintiff and to rebuild the same at an expense to himself of $1,500. Defendant alleged damage to his business by the delay occasioned by the breach of said contract in the sum of $1,000.

[37 Nev. 199, Page 207]

Judgment against plaintiff was demanded “for the sum of $1,344 damages for the breach of said contract, and the further sum of $800 liquidated damages as provided in said contract and costs of this action.”

[1] Issue was joined in this case, by the filing of the answer, February 24, 1908. Trial, for some reason, was not begun until July 11, 1912. Decision was rendered August 14, 1912. Transcript on appeal was filed in this court October 11, 1913. Counsel for plaintiff who tried the case in the court below, upon filing the transcript, filed also with the clerk a notice that he did not represent the appellant further than in perfecting the appeal. No briefs were filed within the time allowed by the rules of this court. Subsequently on February 13, 1914, the firm of Dixon & Miller, upon written request of appellant, filed an appearance in the case on appeal. An affidavit of appellant was also filed setting forth that appellant was taken seriously ill about the time the appeal was taken, and was confined in a hospital for about two months thereafter, and was not aware until about the 11th of February, 1914, that his appeal had not been duly prosecuted; that he did not know prior to such time that he was without representation in this court. No counter affidavit was filed. The case has been briefed and orally argued upon the merits, and upon the question of a motion to dismiss upon the ground that the appeal has been taken for delay merely. In view of the affidavit of appellant, we would not, we think, be justified in dismissing the appeal upon the ground that it was taken merely for delay. There was certainly great delay in bringing the case on for trial, but it does not appear whose fault this was; nor is any question raised upon appeal relative to the delay in the lower court. The transcript contains nearly a thousand pages of testimony and is apparently entirely disproportionate to the issues involved in the case.

[2] The court filed a memorandum decision in the case August 14, 1912, which, in part, reads:

“Facts found: The facts are as stated in ...


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