Belts v. State ex rel. Dept. of Highways

Decision Date31 January 1964
Docket NumberNo. 9257,9257
PartiesF. 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.
CourtIdaho Supreme Court

Clements & Clements, Lewiston, for appellants.

Faber H. Tway, Chief Legal Counsel, and Anton Hohler, Legal Counsel, Dept. of Highways, Boise, for respondents.

SMITH, Justice.

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:

'Fence both sides of approach to creek crossing at Station 560+00 to allow cattle free access across R/W through 132 inch culvert. Bottom of culvert to be paved to protect feet of cattle. Grantor is hereby granted permission to erect gates at the R/W lines across the approaches to the above creek crossing.

'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:

'353+50 on left--415+00 on left--436+50 on left--515+00 on left--542+30 on left--572+00 on left (access to pump house). All the above approaches to be 24 ft. wide.

'Construct Farm and Home approaches at the following locations and will place 24 ft. Type 2 gates at the said approaches. Said approaches to be 24 ft. wide. 565+75--approximate--to enter grantors property at right of 569+00. Said approach to be wyed after leaving Highway to give access to barn at right of 562+50.

'574+75--approximate--to enter grantors property at right of 571+00. The exact location of the above Farm & Home approaches to be decided by the Resident Engineer, taking into consideration grade and construction features.'

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:

'Q. In relation to the removal of existing fences and the construction of new fencing along Mr. Belts' 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.

* * *

* * *

'Q. What did you tell Mr. and Mrs. Belts?

'A. I told them that according to their contract and our contract * * * that is stated in there that this fence couldn't be removed until the other fence was put up and the state couldn't be a party to this. However, if they could make an agreement with S. S. Mullan, * * * the state would have no objection if they could make a satisfactory agreement so that they could remove the fence and Mr. Mullan would put the other up.

'Q. In other words, you referred them to * * * the construction contractor?

'A. That is right.

'Q. Did you discuss this situation with them at any time after this?

'A. A few days later they told me that they had talked to Mr. Clatterboss who was the project manager of this contract for S. S. Mullan and he had stated that they could take the fence down and at any time that * * * they would ask him he would put this other fence up. At the present time there seemed to be no need for the right of way fence to be up.

'Q. Then did you have any further discussion with Mr. and Mrs. Belts regarding their fencing problem?

'A. Well, it was the following summer or fall they came to me and said that they wanted this fence up and that Mr. Clatterboss hadn't gotten it up yet and they wanted to know what my advice would be * * *. They stated they had been to see him many, many times and I informed them as they had this agreement with them, I would suggest that they take it to their lawyer and let him start action.

'Q. Then after this conversation, did you receive a copy of a letter from their attorney?

'A. I did.

'Q. By this it indicated to you that they had followed your advice?

'A. That is right.'

Cross examination of appellant, F. H. Belts:

'Q. * * * Did you remove any of the existing fence yourself?

'A. Yes, I did a small portion of it.

'Q. What do you mean by a small portion?

'A. Well, it was woven wire, about a eighth of a mile of woven fence.

'Q. And you removed that yourself in order to salvage the wire, is that correct?

'A. (no response)

'Q. Did you discuss this with any employee of the State, with Mr. Cox, for instance?

* * *

* * *

'A. Yes, I did with Don Cox I am quite sure.

* * *

* * *

'Q. Did Mr. Cox tell you that it was the contractor's problem, to talk to the contractor about this?

'A. Well, the contractor talked to me about it.

* * *

* * *

'Q. When you discussed this problem with the law firm of Blake & Givens, did they give you a copy of a letter they wrote to Mr. Clatterboss?

'A. Yes, they did.

* * *

* * *

'Q. And it was referring to this fencing problem and a claim that you had against the contractor at that time for not going through with his agreement as per your agreement with Mr. Clatterboss, is that correct?

'A. Yes.'

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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10 cases
  • McLean v. City of Spirit Lake
    • United States
    • United States State Supreme Court of Idaho
    • 27 Julio 1967
    ...that damages for loss of anticipated earnings or profits must be shown with reasonable certainty, citing Belts v. State ex rel. Dept. of Highways, 86 Idaho 544, 388 P.2d 982; McOmber v. Nuckols, 82 Idaho 280, 353 P.2d 398; Coast Transport v. Stone, 79 Idaho 257, 313 P.2d 1073; Huggins v. Gr......
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    • United States State Supreme Court of Idaho
    • 11 Abril 1978
    ...Co., 94 Idaho 702, 496 P.2d 939 (1972); McLean v. City of Spirit Lake, 91 Idaho 779, 430 P.2d 670 (1967); Belts v. State ex rel. Dept. of Highways, 86 Idaho 544, 388 P.2d 982 (1964); McOmber v. Nuckols, supra ; Coast Transport, Inc. v. Stone, 79 Idaho 257, 313 P.2d 1073 (1957); Huggins v. G......
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    • United States State Supreme Court of Idaho
    • 8 Abril 1964
    ...of his compensatory damages on account of alleged breach of the contract, and loss of anticipated profits. Belts v. State ex rel. Dept. of Highways, 86 Idaho 544, 388 P.2d 982 (1964); Williams v. Bone, 74 Idaho 185, 259 P.2d 810 (1953); Harrington v. Hadden, 69 Idaho 22, 202 P.2d 236 (1949)......
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