Daisy D. Blankenship v. Maxwell Rowntree, 238 F.2d 500, 10th Cir. (1956)
Daisy D. Blankenship v. Maxwell Rowntree, 238 F.2d 500, 10th Cir. (1956)
Daisy D. Blankenship v. Maxwell Rowntree, 238 F.2d 500, 10th Cir. (1956)
2d 500
The judgment is challenged upon the ground that there was no substantial
evidence to show that the parties entered into the contract of employment relied
The further contention advanced for reversal of the judgment is that there was
no substantial evidence to show the amount of the expenses which plaintiff
claimed to have incurred. Recovery of expenses cannot be had if there is
substantial doubt or uncertainty as to whether plaintiff incurred any expenses.
But recovery of expenses may be had where the evidence makes it certain that
plaintiff incurred recoverable expenses in some amount even though there may
be some uncertainty in respect to the exact amount thereof. It is not essential to
the recovery of expenses that the proof show the exact amount thereof with
absolute certainty. It satisfies the requirements of law in respect to amount if the
evidence is sufficient to enable the court or jury to arrive at a fair and
reasonable approximation thereof. It is conceded in the brief of the defendant
that the verdict of the jury was for 246 days at $70 per day. Plaintiff did not
keep any books or records of his expenses and he did not submit an itemized
statement of them. As already indicated, plaintiff testified in positive terms that
it was mutually agreed between the parties that his compensation for services
should be $50 per day and that he should be reimbursed for his expenses,
estimated at $20 per day. And he further testified that he worked from January
14 to September 18, 1952; that he lived at a hotel in Oklahoma City; that he
made numerous trips to points in Texas, New Mexico, and Oklahoma in
connection with the business of the defendant; that he paid all of his expenses;
that during the time in question he was not doing anything other than work for
the defendant; and that he was out of pocket about $6,000 in cash. We think the
evidence together with the inferences fairly to be drawn from it was sufficient
to enable the jury to reach a reasonably fair approximation of the amount of
expenses incurred by plaintiff.
4
The substance of the further contention is that the court erred in refusing to
permit counsel for the defendant to argue to the jury that should a verdict be
returned for the defendant, plaintiff could maintain an action in quantum meruit
to recover the reasonable value of the services which he rendered and the
reasonable expenses incurred in connection with the rendering of such services.
Upon objection being interposed to such argument, the court expressed the
view that if plaintiff failed to recover in this action, he could not maintain an
action in quantum meruit. Counsel for the defendant asked to withdraw his
statement made to the jury and requested the court to instruct the jury not to
consider it. And the court did instruct the jury not to consider the statement of
counsel or that of the court. There is no need to explore the question whether
the observation of the court that in the event plaintiff should fail to prevail
herein he could not maintain an action in quantum meruit was an incorrect
statement of law as it is manifest that any error arising out of the making of
such observation was cured by the instruction of the court that the jury
disregard both the argument of counsel and the observation of the court.
Error is predicated upon the action of the court in awarding interest upon the
judgment from the date on which the employment of plaintiff terminated. The
argument is that the existence of the alleged contract of employment was
denied; that the amount asserted to be due was unliquidated; and that therefore
the allowance of interest prior to judgment was without warrant in the law. The
contract was entered into in Oklahoma and was to be performed primarily in
that State, and therefore the question whether the claim was an unliquidated
one upon which interest could not be allowed prior to judgment must be
determined by reference to the law of Oklahoma. Ottinger v. United States, 10
Cir., 230 F.2d 405.
It is the well established general rule of long standing in Oklahoma that interest
is not allowed on an unliquidated claim prior to judgment. City of Chickasha v.
Hollinsworth, 56 Okl. 341, 155 P. 859; Speed v. McMurray, 73 Okl. 325, 176
P. 506; Essley v. Mershon, Okl., 262 P.2d 417; Champlin Refining Co. v.
Phillips Petroleum Co., Okl., 269 P.2d 993; Robberson Steel Co. v. Harrell, 10
Cir., 177 F.2d 12; Chisholm v. House, 10 Cir., 183 F.2d 698. A typical case in
which the rule has appropriate application is one for the recovery of damages
where a verdict or finding is necessary in order to ascertain and fix the amount
due. But it is not applicable in instances in which the right to recover vests at a
particular time and the amount due is capable of being ascertained with
about the reversal of the first judgment. The reversal vindicated the defendant
in her contention that the document should not have been admitted in evidence.
To permit plaintiff now to recover interest for the period intermediate the
rendition of the first judgment and the reversal of such judgment on appeal
would allow him to profit by an error on his part which brought about the
delay, and that would be inequitable and unjust.
9