Basye v. Hayes

• Decision Date: 09 February 1938
• Docket Number: 6442
• Citation: Basye v. Hayes, 58 Idaho 569, 76 P.2d 435 (Idaho 1938)
• Parties: C. H. BASYE and BEATRICE SENECAL, Respondents, v. H. G. HAYES, Appellant
• Writing for the Court: GIVENS, J.
• Court: Idaho Supreme Court

76 P.2d 435

58 Idaho 569

C. H. BASYE and BEATRICE SENECAL, Respondents, v. H. G. HAYES, Appellant

No. 6442

Supreme Court of Idaho

February 9, 1938

JOINT ADVENTURE - ACTION BETWEEN PARTIES - EVIDENCE-SHOP-BOOK RULE - EXHIBITS, WEIGHT OF - QUESTIONS FOR JURY - VALUES-OPINIONS-SPECIAL KNOWLEDGE-SALES OF SIMILAR PROPERTY-INSTRUCTIONS.

1. Refusal of requested instruction was not error where the gist of the requested instruction was sufficiently covered in a given instruction.

2. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, manager's memorandum book with entries on two pages which manager testified he made of amounts of feed given foxes, which showed what manager claimed was, with explanations in regard to other items, a complete memorandum of expense, was admissible even though it did not contain all items of expense, where items of claimed deficiency were all inquired into and presented on cross-examination.

3. The shop-book rule applies to the books of one party to show sales made to or services rendered for the other party.

4. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, weight and sufficiency to be given to exhibit consisting of memorandum book containing entries which manager testified he made of amounts of feed given foxes was for jury.

5. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, wherein manager testified as to what he considered proper charges for handling of foxes, and owner did not testify as to that phase of the case, solution of conflict as to basic facts regarding charges for handling foxes, and deductions to be drawn therefrom, was for the jury.

6. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, manager who had no experience in caring for foxes prior to working for owner but who read magazines relating to foxes, and talked with other fox raisers, and wit- nesses who had six years' experience raising, buying, and selling foxes could testify to similarity of young foxes to other foxes and to their value for breeders and pelters.

7. Generally, evidence of one sale of an article is not admissible to show market value of a similar article which is the subject of litigation.

8. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, evidence of only one sale of two foxes between others than the owner and manager was inadmissible on issue of market value of foxes.

9. In action for one-half of the net profits from raising foxes allegedly due manager of fox farm pursuant to contract between manager and owner of farm, erroneous admission of testimony of one sale of foxes between other parties, on issue of market value of foxes, was not prejudicial where amount of verdict showed it was not based upon such erroneously admitted testimony.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Adam B. Barclay, Judge.

Action to recover one-half the net profits from raising foxes pursuant to contract. Judgment for plaintiff. Affirmed.

Affirmed. Costs to respondents.

Chapman & Chapman, for Appellant.

A nonexpert is not competent to testify as to values. (Joyce Bros. v. Stanfield, 33 Idaho 68, 189 P. 1104; Kellar v. Sproat, 35 Idaho 273, 205 P. 894; Thibadeau v. Clarinda Copper Min. Co., 47 Idaho 119, 272 P. 254.)

Before a witness is qualified to give competent evidence as to the market value of foxes, a proper foundation must be laid, to wit: It must (1) be established that the witness has a definite knowledge of the intrinsic properties of the particular foxes in question; and (2) a definite knowledge of the existence and state of a market for foxes comparable in size, quality, age and suitability for breeding or pelting purposes with the particular foxes in question. (Jones' Commentaries on Evidence, 2d ed., vol. 2, p. 597, sec. 387, citing cases, p. 879, sec. 363; Idaho Farm Development Co. v. Brackett, 44 Idaho 272, at 282, 257 P. 35; Ringer v. Wilkin, 32 Idaho 330, 183 P. 986; Thibadeau v. Clarinda Copper Min. Co., supra.)

Market value of foxes cannot be predicated on a single sale. (22 Corpus Juris, pp. 187, 188, citing cases; Hall v. Delaware etc. R. Co., 262 Pa. 292, 105 A. 98; Hammond v. Decker, 46 Tex. Civ. App. 232, 102 S.W. 453.)

J. H. Barnes, for Respondents.

Witnesses C. H. Basye and F. W. Bohner were each properly qualified to give opinion evidence as to the value of the young foxes as breeders. The question as to whether an offered witness is qualified to testify as an expert is always for the court, and there is no hard-and-fast rule by which that competency is to be determined. (Knauf v. Dover Lumber Co., 20 Idaho 773, 788, 120 P. 157; Rankin v. Caldwell, 15 Idaho 625, 632, 99 P. 108; Idaho-Western Ry. Co. v. Columbia etc. Synod, 20 Idaho 568, 575, 119 P. 60, 38 L. R. A., N. S., 497; American Bonding Co. v. Regents of University, 11 Idaho 163, 185, 81 P. 604.)

If said witnesses were not properly qualified as experts, then the question of whether their opinion as nonexpert witnesses was based upon sufficient observation was addressed to the sound discretion of the trial court. (Carscallen v. Coeur d'Alene etc. Trans. Co., 15 Idaho 444, 452, 98 P. 622, 16 Ann. Cas. 544; Fritcher v. Kelley, 34 Idaho 471, 477, 201 P. 1037; Kellar v. Sproat, 35 Idaho 273, 276, 205 P. 894; Reinhold v. Spencer, 53 Idaho 688, 691, 26 P.2d 796.)

Under some circumstances, value may be proved by proof of a single transaction. (Blackfoot City Bank v. Clements, 39 Idaho 194, 206, 226 P. 1079; 22 C. J. 176, sec. 117.)

GIVENS, J. Morgan, Ailshie and Budge, JJ., concur. Holden, C. J., dissents.

OPINION

GIVENS, J.

Respondents entered into a written agreement with appellant to manage and care for appellant's poultry ranch and fox farm for certain compensation in money and goods. The only portion of the agreement in dispute herein is for one-half the net profits from the fox feature of the agreement.

Respondents recovered judgment for $ 277.38 as one-half the net profits from the increase of foxes. Appellants raise four issues: First, there were no net profits because the expenses exceeded the value of the foxes produced and, collaterally, error in admitting Plaintiff's Exhibit C as not complete or accurate. Second, error in permitting respondent Basye and Bohner to testify as experts as to the value of the foxes as breeders and pelters and that the foxes were not worth the amounts so stated and claimed. Third, error in admitting evidence of one sale and purchase of claimed similar foxes to show market value. Fourth, error in refusal to give appellant's requested instruction No. 1.

Taking up the latter point first, the court defined the issues thus:

"Instruction No. 1

"Plaintiffs allege in their amended complaint, in substance as follows: That on or about September 2, 1935, plaintiffs and defendant entered into a written contract, copy of which has been admitted in evidence as Plaintiff's Exhibit A; that plaintiffs performed all of the duties and services required by the terms of said contract and on or about September 15, 1935, gave notice to defendant of their intention and desire to terminate said contract and remove from the premises on or about October 1, 1936; that all sums earned by plaintiffs for their services under said contract have been fully paid save and except their half of the net profits derived from the foxes; that plaintiffs demanded an accounting and settlement from defendant of the net profits derived from the foxes upon their giving notice to defendant of their intention to terminate the contract, but that defendant did not then and has since refused to make settlement or pay plaintiff anything therefor. Plaintiffs further say that during the period from September 2, 1935, to October 1, 1936, there was raised from the adult breeding foxes owned by defendant eight young foxes whose total market value on October 1, 1936, was $ 2400.00; that said foxes were raised for breeders and are readily saleable as such at said prices, and are worth much more as breeders than as pelters; that the total cost of raising said foxes is $ 12.50 per head, or a total of $ 100.00, leaving a balance of $ 2300.00 as the net value or profit produced by said adult breeding foxes during the period of plaintiff's employment under the contract. Plaintiffs waive any and all of said profits or damages in excess of $ 500. and claim recovery of $ 500.00 only.

"Answering the amended complaint defendant makes denial of each and every paragraph thereof."

And placed the burden of proof on respondents and instructed as to net profits thus:

"Instruction No. 6

"Gentlemen of the jury, you are instructed that the term 'net profits' as used in the contract, plaintiff's Exhibit A, means the gain that accrued from the raising of foxes, after deducting the losses, if any, and expenses of said business; that is to say, you must first deduct from the clear gains of said business venture, the expenses incurred in its conduct and the losses, if any, sustained in its prosecution."

Thus the gist of the requested instruction:

"You are instructed, gentlemen of the jury, that before the plaintiffs are entitled to recover in this action you must determine from the evidence whether or not there were any net profits derived from the raising of the eight fox pups, and that if...