Berlin Machine Works v. Dehlbom Lumber Co.

• Decision Date: 17 October 1916
• Citation: 160 P. 746,29 Idaho 494
• Parties: BERLIN MACHINE WORKS, a Corporation, Respondent, v. DEHLBOM LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

160 P. 746

29 Idaho 494

BERLIN MACHINE WORKS, a Corporation, Respondent, v. DEHLBOM LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

October 17, 1916

RES ADJUDICATA - EVIDENCE - FINDINGS OF FACT, DUTY OF COURT TO MAKE.

1. A plea of res adjudicata cannot be supported by evidence of another trial had between the same parties, involving the same subject matter, upon which nothing was determined; nor can the record of such trial have any weight as evidence at a subsequent trial.

2. It is the duty of the trial court to make findings upon each and every material issue arising upon the pleadings, upon which proof is offered, and upon its failure so to do the cause will be remanded for additional findings, unless such findings would not affect the judgment entered. It is immaterial whether the issues arise upon the allegations of the complaint and answer or upon affirmative defenses alleged in the answer which, under the statute, are deemed denied.

[As to waiver of right to have findings of fact made by the court see note in Ann.Cas. 1914D, 797]

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. Robt. N. Dunn, Judge.

Action to recover resaw and attachments sold under conditional sale. Judgment for plaintiff. Judgment reversed and cause remanded for additional findings and judgment in accordance therewith.

Reversed and remanded with instructions. Costs awarded to appellant.

G. H Martin, for Appellant.

The lower court erred in failing to make findings of fact conclusions of law and judgment upon the first affirmative defense, pleading prior adjudication of the matters in controversy and pleading a counterclaim for the recovery of the purchase money paid less the expense of returning the resaw to the respondent and for a return of the purchase money notes, and entering judgment upon such findings accordingly. (Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L. R. A., N. S., 1142.)

A third person who comes into a pending action by intervention or interpleader setting up a claim to the subject of the controversy is concluded by the judgment, and if it is in his favor he may take advantage of it in any subsequent litigation in which the same question is raised and the same parties concerned. (23 Cyc. 1248; Curtis v. Bradley, 65 Conn. 99, 48 Am. St. 177, 31 A. 591, 28 L. R. A. 143; Austin v. Hamilton County, 76 F. 208, 22 C. C. A. 128.)

This is an adjudication, which if not set aside or reversed on motion for new trial or appeal is binding and conclusive upon the parties forever after. (Black on Judgment, sec. 703, p. 841; Best v. Hoppie, 3 Colo. 137; Durand v. Essex Company, 7 Wall. 107, 19 L.Ed. 154.)

Where the vendor of property under a conditional sale contract elects to retake the property, he must return or offer to return to the vendee any purchase money notes which he may have received, for the reason that he is not entitled to retake the property and also recover the price thereof. (Peasely v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402, 27 L. R. A., N. S., 216; Pease v. Teller Corp., 22 Idaho 807, 128 P. 981.)

This act of rescission on the part of the plaintiff was necessary to entitle it to the possession of the machine. (Peasely v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402, 27 L. R. A., N. S., 216; Wheeler & Wilson v. Teetzlaff, 53 Wis. 211, 10 N.W. 155; Seanor v. McLaughlin, 165 Pa. 150, 30 A. 718, 32 L. R. A. 467.)

Allen P. Asher, for Respondent.

In the absence of any exception to the findings as made by the court having been taken in the lower court, it will be presumed that the findings of fact, conclusions of law and judgment upon the defendant's affirmative defense and counterclaim were waived by the defendant, and that the court made all necessary findings. (People v. Hunt, 1 Idaho 433; Jensen v. Baumgarner, 25 Idaho 355, 137 P. 529.)

Judgment of nonsuit in replevin or after a reversal in the higher court or the recovery by the defendant, if the plaintiff is nonsuited, is no bar to a new suit. (1 Van Fleet's Former Adjudication, 169, 193; Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 3 S.Ct. 99, 27 L.Ed. 878.)

Under this contract respondent has the right to the possession of the resaw without rescinding or canceling the contract, not only for its own protection but also for the protection of the defendant. (Tufts v. D'Arcambal, 85 Mich. 185, 24 Am. St. 79, 48 N.W. 497, 12 L. R. A. 446; Latham v. Sumner, 89 Ill. 233, 31 Am. Rep. 79; Dodge v. Carter, 140 Cal. 663, 74 P. 292; 1 Mechem on Sales, p. 510.)

BUDGE, J. Sullivan, C. J., and Morgan, J. , concur.

OPINION

BUDGE, J.

This action was brought by respondent to recover from appellant one band resaw, No. 285, and attachments, alleged to be of the value of $ 1,350. It is alleged in respondent's complaint that the machine was purchased under a written contract which provided, among other things, that title to the band resaw and attachments should remain in the vendor until paid for in full.

It is also alleged in the complaint that prior to the commencement of the action to recover possession of the above-described personal property a proper demand was made therefor and possession thereof refused by appellant; that said personal property was not taken for any tax, assessment or fine pursuant to a statute, or seized under attachment or execution against the property of respondent. Respondent prayed for judgment for the recovery of the above-described property, or its value in case delivery could not be had.

The appellant in its answer, among other things, denied the ownership or right to possession of the personal property above described in the respondent; denied that the value of said property was as alleged, to wit, $ 1,350. The appellant admitted in its answer the purchase from respondent under contract of the personal property described in the complaint, but denied that the said contract had not been carried out by the defendant and that it held the property wrongfully and without lawful right or title; denied that demand had been made upon it for return of the property, and affirmatively alleged that such demand as was made was coupled with conditions not provided for in said contract, and without return of or offer to return the purchase money notes executed according to the terms of said contract, and without return of or offer to return the purchase money paid according to the terms of said contract. Appellant admitted that the personal property had not been taken for any tax, assessment or fine pursuant to a statute, or seized under attachment or execution against the property of defendant.

As an additional affirmative defense the appellant alleged in its answer that there had been a former adjudication of the rights of the respondent under its contract, in a former action brought in the district court of the eighth judicial district on June 10, 1910, which action was brought by the respondent against the Bradford-Kennedy Company, wherein the appellant herein intervened and joined with the said Bradford-Kennedy Company in resisting the respondent's right to the possession of the identical personal property sought to be recovered in this action, and as a further defense, and by way of counterclaim, the appellant set out the execution of the contract upon which this action is brought, the shipment to it by the respondent of the resaw and attachments involved in this litigation, and alleged that prior to March 1, 1910, it paid to the respondent on the purchase price of said resaw the sum of $ 739, and that at the time of the execution of said contract it executed and delivered to the respondent three promissory notes, one for $ 300 due in four months, one for $ 250 due in five months, and one for $ 300 due in seven months, with interest at seven per cent; that the respondent never offered to return the money paid or any part thereof, nor offered to return to appellant the notes above referred to, and affirmatively alleges that upon the plaintiff's election to rescind said contract on or about March 1, 1910, there became due from respondent to this appellant the sum of $ 739, less the expense of returning said resaw to Beloit, Wisconsin, which, it is alleged, did not exceed $ 200, and in addition thereto appellant alleges that it became entitled to the possession of said promissory notes, and prays judgment against respondent, should the relief in its answer be denied, that it then have judgment against respondent for $ 739, less the cost and expense of returning said resaw and attachments to Beloit, Wisconsin, and in addition thereto for the possession and cancelation of its said promissory notes.

Upon the issues thus made, briefly stated as above, the cause was tried by the court without a jury. The court, after hearing the evidence, made its findings of fact and conclusions of law, and entered its judgment wherein it adjudged and decreed that the respondent was entitled to the immediate and exclusive possession of the resaw, style No. 285, and attachments, and that in case delivery could not be had, that respondent was entitled to judgment against appellant for $ 1,350, its value, less such amounts as defendant may have paid thereon. And it was further adjudged and decreed that appellant was entitled to the return of the unpaid notes. This appeal is from the judgment. The appellant assigns and relies, for a reversal of this cause, upon five assignments of error, which are as follows:

First, the court failed to make findings of fact, conclusions of law and judgment upon the defendant's counterclaim.

Second the court failed to make findings of fact or conclusions of law as to the right of the appellant to the possession of the purchase money...