Andrews v. Moore

• Decision Date: 06 March 1908
• Parties: THOMAS K. ANDREWS, Respondent, v. J. M. MOORE, Appellant
• Court: Idaho Supreme Court

94 P. 579

14 Idaho 465

THOMAS K. ANDREWS, Respondent, v. J. M. MOORE, Appellant

Supreme Court of Idaho

March 6, 1908

AMENDED COMPLAINT-DEMURRER-STIPULATION OF FACTS.

1. Where a complaint is amended, it takes the place of the original complaint, and the action of the trial court in overruling a demurrer to the original complaint becomes of no consequence, and cannot be alleged as error on appeal.

2. Where the facts are stipulated as facts, and such stipulation shows no liability upon the part of the defendant, it is error for the trial court to overrule a motion for judgment on the stipulated facts.

3. Where the facts of a case are stipulated as facts, oral testimony cannot be offered for the purpose of contradicting such stipulation.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Lemhi County. Hon. J. M. Stevens, Judge.

Action to recover upon a written contract for the sale of a horse. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to appellant.

H. G Redwine, for Appellant.

F. J Cowen, for Respondent.

Counsel cite no authorities on points decided.

STEWART J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The respondent, as assignee of Dunham & Fletcher, brings this action to recover the sum of $ 309 alleged to be due upon the following contract:

"No. 2015 (32464) Baker, Ida., 3-12, 1906.

"Name of Stallion, Brise Tout.

"Dunham and Fletcher, of Wayne, Ill., agree to sell the above named stallion for $ 3400 to the undersigned subscribers, who wishing to improve their stock, agree to pay to Dunham, Fletcher $ 309 for each share in said stallion.

"Capital stock, $ 3400. No. Shares. 11.

"Payment to be made in cash; or one-third in one year, one-third in two years, and one-third in three years from July 1st, 1906, secured by joint and several negotiable notes, with interest at six per cent per annum.

"In event the shares are not fully subscribed this agreement is void.

"(Subscribed on back of contract): Geo. S. Dewis, J. M. Davis, O. W. Gorham, W. A. Rose, W. R. Baker, Barney Sharkey, H. T. Albertson, Frank Sharkey, S. R. Fleming, J. M. Moore, Frank Marron."

The defendant demurred to the original complaint, which demurrer was overruled and the defendant then answered. Afterwards, a stipulation was entered into by the respective counsel to the effect that the plaintiff might file an amended complaint and that the defendant might file amendments to his answer to meet the new allegations in the amended complaint. In accordance with this stipulation the plaintiff filed an amended complaint, and the defendant filed certain amendments to his answer. In the amended complaint the plaintiff alleged the making of the contract sued upon, and that the same was fully completed by the persons subscribing their names thereto, that they were each notified when the horse therein described would be delivered, and that the horse was delivered to a large majority of said subscribers, but that the defendant, Moore, failed to appear at such delivery and failed and refused to pay for his interest in said horse as agreed by him. That Dunham and Fletcher have fully kept and performed their part of said contract, and that the horse was delivered upon the express condition and understanding that one-eleventh interest in such horse was the property of the defendant, Moore, upon his compliance with the terms of said contract, and that the plaintiff's assignors, Dunham and Fletcher, tendered to the defendant a transfer of such interest in said horse.

It was then alleged that Dunham and Fletcher assigned their interest in said contract to R. D. Henley, who in turn assigned the same to the respondents herein. That the sum of $ 309 with interest from April 27, 1906, at six per cent per annum is due on said contract. That plaintiff made demand therefor and the defendant refused to pay the same, wherefore judgment is demanded.

The defendant answered the complaint and admits the making of the contract by the persons named therein, but alleges that after the same had been executed, W. R. Baker, one of the parties who signed said contract, was released therefrom by Dunham and Fletcher, without any consideration therefor, and without this defendant's knowledge or consent. He admits that he was notified of the delivery of said horse, but that he did not have sufficient time to attend such delivery. He denies the assignments to the plaintiff. As a further defense he alleges that R. B. Henley, who was the agent of Dunham and Fletcher, falsely and wilfully misrepresented the cost of keeping the horse, and represented that it would be $ 200 a year, when in fact it cost $ 400 a year, and that but for such false and misleading statements he would not have signed such agreement.

As a further defense the defendant alleges that the persons named as subscribers to said contract, except W. R. Baker and the defendant, met on March 15, 1906, and organized themselves into a partnership under the name of the Baker Belgian Horse Company; and at said meeting nine persons organized by electing a president and secretary; that after said partnership was organized the said Dunham and Fletcher, by and through their said agent, R. B. Henley, transferred, sold and assigned the said horse mentioned in said complaint to said Baker Belgian Horse Company, and executed a bill of sale therefor, and transferred the possession of said horse to said nine persons so organized, and that such persons now own and possess said horse.

That at the time said horse was sold and assigned to said Baker Belgian Horse Company, the said nine persons constituting the same executed their joint and several promissory notes for the sum of $ 3,400, which were delivered to the said agent of Dunham and Fletcher in payment of said horse, and by reason of such sale this defendant alleges that he was released from any obligation under said contract.

As a further defense, he alleges that W. R. Baker, one of the signers of said contract, and who was afterward released therefrom by the assignors of plaintiff, was a man of means, and that this defendant would not have signed said contract had he known that said Baker would have been released therefrom, and by reason of the release of said Baker without his consent he alleges that he is released from any obligation under said contract.

Before trial, a stipulation was entered into between the respective counsel, agreeing upon the facts which in substance are as follows:

First, that Dunham and Fletcher were, and still are, partners under the firm name of Dunham and Fletcher.

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