Austin v. Brown Brothers Co.

• Decision Date: 08 March 1917
• Parties: JAMES S. AUSTIN, Respondent, v. BROWN BROTHERS COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

164 P. 95

30 Idaho 167

JAMES S. AUSTIN, Respondent, v. BROWN BROTHERS COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 8, 1917

CONTRACTS-SEPARABLE CONTRACTS-EVIDENCE-SUBSTANTIAL PERFORMANCE-PLEADINGS-QUALIFICATION OF EXPERTS.

1. Under sec. 4201, Rev. Codes, the failure to deny a written instrument contained in the answer as therein required admits the genuineness and due execution of such instrument, but the plaintiff is not precluded thereby from taking any position in avoidance of the contract which is not inconsistent with the admission of its genuineness and due execution.

2. Where three persons gave individual orders complete in themselves for nursery stock to an agent of a nursery company, and thereupon, at the suggestion of the agent, the three orders were combined in one and signed by one of the three, held, that under the facts of this case the combined order became a separable contract.

3. Where a contract for the sale of fruit trees, prepared by the seller to be signed by the buyer contains a provision that "any stock which does not prove to be true to name as labeled is to be replaced free or purchase price refunded," such contract contains an implied condition precedent requiring a substantial performance by the seller for the breach of which the buyer is entitled to compensatory damages, and the foregoing provision of the contract applies only to such mistakes as are liable to occur in the substantial performance of the contract.

4. Where by the undisputed testimony there is clearly a substantial failure of performance on the part of one of the parties to the contract, it is the duty of the court so to declare as a matter of law.

5. A judgment will not be reversed where it appears that the jury took cognizance only of matters proper for their consideration, even though the jury was erroneously instructed.

6. Qualification of witnesses to testify as experts must be determined in the first instance by the trial court, and unless it is apparent that the trial court was in error in permitting a witness to testify as an expert, the judgment will not be reversed.

7. An instruction should not be given unless founded on the issues in the case or evidence received at the trial. But where, by examination of instructions given in the trial, it appears that the giving of such instruction did not result in any substantial injury to appellant, the judgment will not be reversed.

[As to qualification of witness to testify as expert as resting in the discretion of the trial court, see note in Ann.Cas 1912D, 817]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Chas. O. Stockslager, Judge.

Action for breach of contract. Judgment for plaintiff. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondent. Petition for rehearing denied.

Longley & Walters, for Appellant.

This being the contract between the parties, it was error for the court to permit testimony to be offered, either of prior negotiations or of the contract offered as Exhibit "A." (Jacobs v. Shenon, 3 Idaho 274, 29 P. 44; Idaho Fruit Land Co. v. Great Western Beet Sugar Co., 18 Idaho 1, 107 P. 989; Newmyer v. Roush, 21 Idaho 106, Ann. Cas. 1913D, 433, 120 P. 464.)

"Where the written sale contains no warranty, or expresses the warranty that is given by the vendor, parol evidence is inadmissible to prove the existence of a warranty in the former case, or to extend it in the latter, by inference or implication." (Benj. on Sales, sec. 942; 1 Elliott on Evidence, sec. 580; Mast v. Pearce, 58 Iowa 579, 43 Am. Rep. 125, 8 N.W. 632, 12 N.W. 597.)

"An instruction defining an abstract proposition of law, where there is no evidence in the case to which such instruction is applicable, only serves to befog and mislead the jury and should not be given." (Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Calkins' Estate, 112 Cal. 296, 44 P 577.)

The contract must not be construed to defeat the intention of the parties; but effect must be given to all the provisions and parts of the contract, and no part should be rejected unless absolutely repugnant to the general intent. (Sinclair & Co. v. National Surety Co., 132 Iowa 549, 107 N.W. 184; Smith v. Durkee, 116 Mich. 484, 131 N.W. 1116; Chicago, B. & Q. R. Co. v. Bartlett, 20 Ill. 603, 11 N.E. 867.)

Where parties have made their contract it is the duty of the court to enforce it, as they have elected to make it, without regard to the fact that in the light of subsequent events a hardship may be worked. (Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421; Norcross v. Wills, 198 N.Y. 336, 91 N.E. 803.)

Babcock & Graham and E. M. Wolfe, for Respondent.

Exhibit "A" was not offered for the purpose of proving the contract between respondent and appellant, but simply to explain the method used by appellant's agent to secure the contract upon which suit was brought.

The instructions plainly show that the jury were advised to consider the contract pleaded in the answer as the contract upon which the suit was brought. (Martin v. Dowd, 8 Idaho 453, 69 P. 276.)

The defendant cannot be heard to complain of the verdict of the jury and cannot have it set aside, if the verdict was arrived at by the jury upon a proper consideration of a proper measure of damages, even though they do disregard the instruction of the court in so doing. (Tarr v. Oregon Short Line R. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 957.)

There was not a substantial compliance with the contract, and especially when the variety of trees delivered to the plaintiff were of a wholly worthless kind, having no market value whatever. (Sanford v. Brown Bros. Co., 134 A.D. 652, 119 N.Y.S. 333; Grisinger v. Hubbard, 21 Idaho 469, Ann. Cas. 1913E, 87, 122 P. 853; State v. Pioneer Nurseries Co., 26 Idaho 332, 143 P. 405.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

In June, 1905, the plaintiff and respondent executed an order to the defendant and appellant to furnish him with 500 apple trees, together with 45 pear, cherry, peach and plum trees, the variety of trees to be furnished and the prices to be paid therefor being fully set out. At the same time and place, respondent's brother and brother-in-law executed orders for various amounts of nursery stock, the exact number of trees ordered by them being not material in this case. Upon the execution of these orders it was suggested by appellant's agent that for convenience in shipping and in buying the trees a combined order should be made and the three orders shipped in one. The combined order was thereupon prepared and signed by respondent. The combined order differed from the original order executed by the respondent, in that it contained the following provision which the original order did not contain: "Any stock which does not prove to be true to name as labeled is to be replaced free or purchase price refunded; and all stock to be delivered in a thrifty and healthy condition."

The trees were delivered at Twin Falls in the spring of 1906. They were taken to the premises of the respondent and there divided among the three parties, each taking the trees that he had ordered. The trees arrived labeled so as to indicate the variety and number of trees. Respondent planted his trees in the spring of 1906 on his premises, consisting of a forty-acre subdivision, and cared for them until about April, 1910, when he discovered that a large part of the trees so planted and cared for by him were not true to name. Among the 500 trees ordered by him were 300 Jonathan and 130 Rome Beauty trees. No Jonathan or Rome Beauty trees were received, but instead the trees proved to be Wolf River, Peewaukees and an unknown variety. Respondent brought suit against the appellant to recover damages suffered as a result of the breach of the contract. The case was tried to a jury and a verdict was rendered in favor of respondent in the sum of $ 1,500.

The appellant assigns twenty-six specifications of error as ground for reversing the judgment, but relies principally upon those hereinafter considered.

Appellant in its answer set out a copy of the combined order claiming that said order constituted the contract between the parties. At the beginning of the trial the court, over the objection of appellant, permitted respondent to introduce his individual order. The specific objection was that the order was not the same as the order signed by the respondent in this action, as set forth in the answer, and inasmuch as there was no denial of the order as required by the statute it was admitted to have been the order made by the defendant. Sec. 4201, Rev. Codes, reads as follows: "When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant." It is admitted that no affidavit denying the combined order was filed or served on appellant. The genuineness and due execution of the contract alleged in the answer was therefore admitted.

In the case of Cox v. North-Western Stage Co., 1 Idaho 376 this court held that due execution of an instrument of writing goes to the manner and form of its execution by persons competent to execute it according to the laws and customs of the country where executed. The genuineness of an instrument in writing goes to the question of its having been an act of the party, just as represented; or, in other words, that the signature is not spurious, and that nothing has been added to or taken from it, which would...