Bertleson v. Van Deusen Brothers Co.

• Citation: 37 Idaho 199,217 P. 983
• Parties: B. C. BERTLESON, Respondent, v. VAN DEUSEN BROTHERS COMPANY, Appellant
• Decision Date: 26 May 1923
• Court: Idaho Supreme Court

217 P. 983

37 Idaho 199

B. C. BERTLESON, Respondent, v. VAN DEUSEN BROTHERS COMPANY, Appellant

Supreme Court of Idaho

May 26, 1923

CLAIM AND DELIVERY-EVIDENCE-ADMISSIBILITY OF-TRANSACTIONS BEFORE DEATH OF DECEASED-SALES-EXECUTORY CONTRACT-TITLE TO MAINTAIN ACTION-NONSUIT.

1. An agreement to sell all the hay to be raised on certain premises during a certain year, at an agreed price, upon which a part payment is made, is merely an executory contract of sale and does not vest title in the purchaser; so that upon refusal of the seller to deliver the hay, the purchaser may sue for damages for failure to deliver, but not for possession of the property.

2. Title or right to possession is an essential prerequisite to an action in claim and delivery.

3. The provisions of C. S., sec. 7936, subd. 3, disqualifying parties or assignors of parties from testifying, in an action or proceeding prosecuted against an estate upon a claim or demand against such estate, as to matters of fact occurring before the death of such deceased person, are not applicable where such testimony is for the purpose of establishing a claim against a third person, a codefendant, which is not a claim against such estate.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.

Action in claim and delivery. Judgment for respondent against appellant. Reversed and remanded.

Cause remanded, with instructions. Costs awarded to appellant.

Lot L Feltham, for Appellant.

The second amended complaint did not state any facts sufficient to constitute a cause of action against the appellant for want of material allegations, bringing the case within the provisions and restrictions of C.S., sec. 5691. (Portland Seed Co. v. Clark, 35 Idaho 44, 204 P. 146; Brown v Feeler, 35 Idaho 57, 204 P. 659.)

Harry S. Kessler, for Respondent.

C.S sec. 7936, par. 3, only forbids a claimant from testifying against the administrator of an estate of a deceased person. The plaintiff's testimony was clearly admissible against the appellant, who was a codefendant and against whom a several judgment could be and was rendered. (Shain v. Forbes, 82 Cal. 577, 23 P. 198; Nesbit v. Swallow, 63 Colo. 194, 164 P. 1163, and cases cited; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228.)

The title to the hay in question passed to plaintiff when it was grown, harvested and stacked. It was then in condition for plaintiff to accept and nothing remained but measuring for the purpose of ascertaining the price. (24 R. C.L. 21, 22(tit."Sales," sec. 283); Barber v. Andrews, 29 R. I. 51, 69 A. 1, 26 L.R. A., N.S., 1; Clinton Sheep Co. v. Ogee, 34 Idaho 22, 198 P. 675.)

This was a contract for the sale of specific goods and the seller was bound to grow, harvest and stack the hay in question for the purpose of putting it in deliverable state; the title passed when that was done. (C. S., sec. 5691, rule 2.)

It was likewise a contract requiring the seller to deliver the goods or the hay in question at a particular palce, to wit at the stack on the lands of the sellers, and the title passed when the hay reached the stack, which was the place agreed upon. (C. S., sec 5691, rule 5.)

BUDGE, C. J. Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This action is one in claim and delivery to recover the possession of certain hay or the value thereof in case delivery cannot be had. From the record it appears that H. A. Berry and Clarissa A. Berry, husband and wife, entered into an executory contract of sale with respondent, to sell the hay crop to be grown upon their land in 1917 for the sum of $ 8 per ton. After the hay was grown and stacked they refused to make delivery to respondent, claiming, as testified to by respondent, that they made no contract with him. This action was brought against the Berrys during their lifetime. To the complaint they filed a demurrer, but prior to the date of the hearing on the same they both died. George Donart was appointed administrator with the wills annexed of the estates of the Berrys, was substituted as a party defendant, and filed an answer. Appellant was also made a party defendant and filed its demurrer and answer. All of the allegations of the complaint were denied both by the administrator and appellant, the latter affirmatively alleging that it was a bona fide purchaser of the hay from the Berrys without notice. The record is silent as to the disposition made of the demurrers by the court. We think, however, it is immaterial what action was taken upon them. The cause was tried to the court and jury. A motion for nonsuit was made at the close of respondent's testimony by both the administrator and appellant and renewed at the close of all of the testimony. The motion was sustained as to the administrator but denied as to appellant. Judgment upon the verdict of the jury was entered in favor of respondent and against appellant for $ 604.70 and costs. This appeal is from the judgment.

The first assignment of error to be noticed involves the action of the court in permitting respondent, over the objection of appellant, to testify as to any matters occurring between respondent and deceased in connection with entering into the alleged executory contract of sale with the Berrys prior to their deaths. Respondent was permitted to testify that in 1916 he purchased from the Berrys the hay grown upon their premises and at the same time that he made payment therefor he gave them a check for $ 50, as part payment on the 1917 crop of hay to be grown, which he agreed to purchase at $ 8 per ton including the...