Boomer v. Isley

Citation49 Idaho 666,290 P. 405
Decision Date28 July 1930
Docket Number5424
PartiesH. H. BOOMER, Appellant, v. JAMES ISLEY and L. ISLEY, Respondents
CourtUnited States State Supreme Court of Idaho

CHATTEL MORTGAGES-DISPOSAL OF CHATTELS WITHOUT FORECLOSURE-GENERAL VERDICT - WAIVER OF OBJECTIONS - TRIAL - INSTRUCTIONS.

1. Chattel mortgagee who took chattels and sold them without mortgagors' consent, and without statutory foreclosure could not recover deficiency.

2. Where evidence is conflicting, verdict supported by substantial evidence will not be set aside.

3. Respecting necessity for separate verdicts, mortgagors' defenses that mortgagee unauthorizedly sold property without foreclosure and gave general release were separate but not inconsistent defenses.

4. Without request that separate verdicts be returned on separate defenses, objection to general verdict cannot be first raised on appeal or motion for new trial.

5. Under defense to note that mortgagors surrendered certain land to mortgagee's purchaser in return for cancelation of all indebtedness, testimony of value of land was admissible.

6. Counsel having stipulated that absent witness would give certain testimony, but objecting thereto as irrelevant, could not object on appeal there was no opportunity to cross-examine and no showing witness was unavailable.

7. Where party desires instructions other than those given on damages, he must offer them at trial.

8. Failure to instruct jury that certain evidence was admitted for single purpose was not error, no request therefor having been made.

9. Assignment that court erred in denying new trial would not be considered, in absence of certificate respecting papers considered on hearing (supreme court rule 21).

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action on promissory note. Judgment for defendants. Affirmed.

Judgment and order affirmed. Costs to respondents.

E. H Casterlin and E. W. Whitcomb, for Appellant.

If upon either defense made by the defendants there was error during the progress of the trial, a general verdict cannot be upheld. (Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822; 27 R. C. L., p. 856.)

There existed no substantial evidence in support of defendant's first affirmative defense, and a general verdict cannot be upheld. (Chase v. Knabel, 46 Wash. 484, 90 P. 642, 12 L. R. A., N. S., 1155.)

L. E. Glennon, for Respondents.

By taking possession of the mortgaged chattels and converting them to his own use or disposing of them in any manner other than that prescribed by law, the mortgagee thereby satisfied the mortgage debt in full and forfeited his right to maintain an action at law or otherwise for the deficiency. (Boomer v. Isley, 42 Idaho 547, 47 A. L. R. 578, 246 P. 966; Rein v. Callaway, 7 Idaho 634, 65 P. 63; Advance Thresher Co. v. Whiteside, 3 Idaho 64, 26 P. 660; Garrett v. Soucie, 46 Idaho 289, 267 P. 1078; First Nat. Bank v. Poling, 42 Idaho 636, 643, 248 P. 19; Berg v. Carey, 40 Idaho 278, 232 P. 904; Portland Cattle Loan Co. v. Biel, 42 Idaho 39, 245 P. 88; Mitchell, Lewis & Staver Co. v. O'Neil, 16 Wash. 108, 47 P. 235.)

Where a general verdict is submitted and no special verdict is requested a general finding for either party is sufficient. (Tannahill v. Lydon, 31 Idaho 608, 173 P. 1146; Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Campbell v. First Nat. Bank, 13 Idaho 95, 88 P. 639; Keim v. Gilmore & P. R. R. Co., 23 Idaho 511, 131 P. 656.)

"An omission to charge on a particular point cannot be assigned as error where no instruction on the point has been requested by appellant." (State v. Roby, 43 Idaho 724, 254 P. 210; State v. Harness, 10 Idaho 18, 76 P. 788; State v. Jurko, 42 Idaho 319, 245 P. 685; Barter v. Stewart Min. Co., 24 Idaho 540, 135 P. 68.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This is an action on a promissory note formerly secured by chattel mortgage on approximately 1,100 head of sheep, not including accretions, increase or wool. Appellant alleged the sale of the mortgaged property, and application of the proceeds thereof to the mortgage indebtedness, by consent of defendants, and prayed for judgment for a balance of $ 17,342.26, interest, and attorney's fees. The answer denies the sale of the property as alleged in the complaint, or that the security has become valueless, or that any sum is owing on account of said promissory note, etc., and sets up two affirmative defenses: First, that appellant took the mortgaged property and sold it without respondents' consent, without accounting therefor, and that no proceedings were had as for the foreclosure of chattel mortgages; second, that subsequently appellant released respondents from all indebtedness, of every nature, in consideration of respondents' surrendering possession of a certain ranch in Lemhi county and canceling an agreement to purchase the same from appellant. The cause was tried in Lemhi county, resulting in a verdict for defendants, in 1923. A new trial was ordered, which was affirmed by this court on appeal. See Boomer v. Isley, 42 Idaho 547, 47 A. L. R. 578, 246 P. 966, where a more comprehensive statement of the pleadings will be found. On the cause being remanded, a change of venue was had to Twin Falls county in the Eleventh Judicial District. The cause was there tried with a jury, the Hon. Wm. A. Babcock presiding, again resulting in a verdict and judgment for defendants. A motion for a new trial was made and denied. Plaintiff appeals from the judgment and order denying a motion for a new trial.

The first assignment of error, argued under practically five heads, is to the effect, first, that the evidence is wholly insufficient to sustain the verdict, in that it does not show that the sheep in controversy were taken and sold by appellant as his own, without the consent of respondents, or without following the statutory procedure relative to sale of mortgaged chattels, but that the evidence is conclusive that the sheep were sold by respondents; second, that there is no evidence that Hale and McKinney were acting as agents for appellant; third, that the evidence is insufficient to show that the contract alleged in the second defense was ever made as alleged therein or at all; fourth, that the evidence is conclusive that Isley agreed to surrender the land at a conference held on the premises, Boomer, Isley and Monroe being present, in October, 1921, and that the surrender was made accordingly, with permission given by Boomer to Isley that he remain on the premises until other arrangements could be made by him; fifth, that there is no evidence that respondents' relinquishment of the lands would likewise cancel the balance due on the note sued on in the present action.

Appellant and respondent Isley had had business relations for twenty years. The former was a railroad contractor, residing at Spokane, Washington, and Isley had at one time worked for him and had held subcontracts under him. Appellant had for years, at different times, loaned respondent money. Isley on December 15, 1914, entered into a contract with Boomer for the purchase of 446.75 acres of land in Lemhi county, Idaho, for which he agreed to pay $ 20,500, in instalments, with interest at six per cent per annum, the last instalment falling due January 1, 1929. Isley went into actual possession of these lands, and remained in possession thereof until the fall of 1922, when he surrendered possession to one Babcock, to whom Boomer had conveyed the land. On February 1, 1918, Boomer loaned Isley $ 20,500, evidenced by a promissory note bearing interest at the rate of eight per cent per annum, executed by respondents, and secured by a chattel mortgage dated February 19, 1918, on approximately 1,100 head of sheep. No mention is made in the mortgage of accretions, wool or increase, but the pleadings of both parties are to the effect that they were not covered by the mortgage.

It is not disputed that the mortgaged sheep, including their lambs, were leased in May, 1920, to one Hale, who agreed to market the lambs when ready in August, and run the sheep for forty per cent of the lambs; that Isley delivered the sheep and lambs to Hale at Salmon, Idaho; that thereafter Peter McKinney, manager for two corporations owning sheep, in which he and Boomer were the principal stockholders, received the sheep and lambs from Hale and shipped them to North Dakota; that the lambs were shipped from there and sold on the Chicago market, and the mortgaged sheep were afterwards sold in North Dakota; that Hale likewise delivered the wool shorn from said sheep to McKinney, who shipped and sold it with wool owned by his companies; that the proceeds of these sales of sheep, lambs (sixty per cent thereof), and wool, aggregating $ 5,684.69, were remitted by McKinney to Boomer's office in Spokane, and credited on the sheep note; that in 1919 Isley had paid Boomer $ 1600 on account of interest on this note; that no further payments were made on said note, which was never marked canceled or returned to Isley.

The evidence is conflicting as to whether Hale leased the sheep from Boomer or Isley, or they were delivered by Isley to Hale at Boomer's demand, or McKinney had any agreement with Isley for the shipping and sale of the sheep, or Hale and McKinney were agents of Boomer or of Isley in the sheep transactions, or whether they made any report to Isley of the sale and disposition of the proceeds of the sales of the sheep, lambs and wool, or whether Isley afterwards ever acknowledged his liability on the sheep note for the amount remaining after crediting the items mentioned.

We conclude, after a careful consideration of the record, that there is sufficient evidence to sustain...

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