Belts v. State ex rel. Dept. of Highways
| Decision Date | 31 January 1964 |
| Docket Number | No. 9257,9257 |
| Citation | 388 P.2d 982,86 Idaho 544 |
| Parties | F. H. BELTS and E. Jean Belts, Husband and wife, and George F. Denham and Eva H. Denham, Husband and wife, Plaintiffs-Appellants, v. The STATE of Idaho on relation of the DEPARTMENT OF HIGHWAYS of the State of Idaho, and Rescoe C. Rich, Wallace C. Burns, and Ernest F. Gaffney, Idaho Board of Highway Directors, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Clements & Clements, Lewiston, for appellants.
Faber H. Tway, Chief Legal Counsel, and Anton Hohler, Legal Counsel, Dept. of Highways, Boise, for respondents.
This appeal is from a judgment of the district court of Nez Perce County denying the claim of appellants (plaintiffs) for specific performance and damages occasioned by the alleged breach of a highway right of way contract by respondent (defendant) Department of Highways. The appeal questions the district court's findings of fact and conclusions of law, thus necessitating a review of the trial record in order to determine whether the evidence is sufficient to sustain the findings and judgment.
On June 7, 1956, appellants, Francis H. and E. Jean Belts, contracted for the sale of approximately 190 acres of their ranch lands to respondents for right of way purposes on a proposed highway project in Nez Perce County. Respondents paid appellants $10,145.80 as the total consideration; $7,195.80 was allocated as the purchase price of the land; and $2,950.00 as damages for (1) rearrangement of appellants' buildings and fences outside of the right of way, (2) clearing and building of cattle trails outside of the right of way for purpose of access to all various parts of appellants' ranch, (3) loss of direct access to canyon and creek bottoms at all points for cattle and logging operations, and (4) necessary development of springs wherever access to the creek would be obliterated.
The obligations assumed by respondents which appellants claim were not performed satisfactorily appear in the contract as follows:
'The fencing on the Westerly (left) side of the R/W shall be completed before the removal of the existing fences and due care shall be taken that during operations the cattle of the grantor will be protected.
'Construct logging and cattle truck approaches at the following locations and will place Type 1 gates at the said approaches:
Appellants sought damages and specific performance, claiming that respondents breached the contract in that they (1) 'neglected to perform * * * the construction of a culvert and the paving of the flooring thereof to protect the feet of plaintiffs' cattle'; (2) 'failed to construct the logging and cattle truck approaches and the farm and home approaches in the manner and at the places designated in said Right-of-Way contract to be constructed and installed'; and (3) 'removed the fences existing at the time of the contract prior to the installation of the permanent fences, and otherwise failed to protect the cattle operations of the plaintiffs.' The trial court found and concluded that those contentions were without merit, and rendered judgment denying any relief to appellants; this appeal resulted.
Appellants, including George F. and Eva H. Denham as successors in interest to Mr. and Mrs. Belts, assign as error the trial court's failure to find that respondents breached that part of the contract providing for the completion of fence construction on the westerly side of the right of way before removal of the existing fences. Respondents admit their obligation to perform, but contend that such provision of the contract was subsequently modified by an oral agreement, which they approved, between appellants Belts and S. S. Mullan Corporation, the prime contractor on the highway project; and that any duties originally owed for proper completion of the fencing were thereby ended.
Although the trial court made no specific finding as to that alleged breach of the contract, the evidence, while conflicting in some aspects, is sufficient to show that any loss suffered by appellants through inability to use their property for pasturing was brought about by appellants' subsequent agreement with the prime contractor for removal and salvage of the existing fences for use elsewhere on appellants' property. The following supports such conclusion: Direct examination by Donald L. Cox, respondents' engineer in charge of the project:
property on this project, did you have any discussion with Mr. Belts?
'A. Yes, I had several. * * * The first discussion was shortly after the contract had been awarded in the winter of '57 and '58 and Mr. Belts and Mrs. Belts stopped me in the canyon one day and wanted to know if it would be possible that they would remove the fence on their property so that they could salvage it and use it in other places.
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Cross examination of appellant, F. H. Belts:
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Parties to a written contract may modify its terms by subsequent oral agreement, or may contract further with respect to its subject matter. Ore-Ida Potato Products, Inc. v. Larsen, 83 Idaho 290, 362 P.2d 384 (1961); Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 62 Idaho 683, 115 P.2d 401 (1941); Smith v. Washburn-Wilson Seed Co., 54 Idaho 659, 34 P.2d 969 (1934); Brooks v. Beach, 50 Idaho 185, 294 P. 505 (1930); 6 Corbin on Contracts, § 1316 (1962); Simpson on Contracts, § 63 (1954); Restatement of Contracts, § 407 (1933).
There is no evidence to indicate that respondents did not intend to comply with the original contract provision for installation of fences; but by the subsequent agreement, appellants chose to look to Mullan Corporation, and not to respondents, for performance of the covenant relating to the fences. Appellants, themselves, must have entertained such view when they made claim against Mullan Corporation for its failure to construct the fence.
Appellants assign as error the trial court's failure to find that appellants suffered damage because of respondents' construction of a concrete bridge at station 560+00, rather than a 132 inch culvert with paved flooring, as called for by the contract. Although respondents argue to the contrary, the...
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