Branom v. Smith Frozen Foods of Idaho, Inc.

• Decision Date: 30 October 1961
• Docket Number: No. 8932,8932
• Citation: 365 P.2d 958,83 Idaho 502
• Parties: Duncan B. BRANOM, Plaintiff-Respondent, v. SMITH FROZEN FOODS OF IDAHO, INC., Defendant-Appellant.
• Court: Idaho Supreme Court

Page 958

365 P.2d 958

83 Idaho 502

Duncan B. BRANOM, Plaintiff-Respondent, v. SMITH FROZEN FOODS OF IDAHO, INC., Defendant-Appellant.

No. 8932.

Supreme Court of Idaho.

Oct. 30, 1961.

Cox, Ware, Stellmon & O'Connell, Lewiston, for appellant.

Clements & Clements, Lewiston, for respondent.

KNUDSON, Justice.

Respondent, Duncan B. Branom, a farmer in Nez Perce County, commenced this action to recover from appellant, Smith Frozen Foods of Idaho, Inc., damages allegedly resulting from the breach of an oral agreement relative to a crop of green peas.

Under respondent's complaint it is alleged that during February and March of 1957, respondent was solicited by appellant through its agent to raise a crop of Perfection peas on land farmed by respondent; after some negotiation it was orally agreed between the parties that respondent would plant approximately 235 acres of farm land with Perfection seed peas to be furnished by appellant at respondent's expense; that appellant would supervise the raising of such crop; that the crop would be harvested by one, K. O. Anderson; that such crop would be purchased by appellant on the basis of specified sums per ton according to grade; the cost of pea seed and any expense incurred in caring for and protecting the crop, exclusive of planting and harvesting, would be deducted from the amount to be paid by appellant for the crop and the amount remaining to be divided equally between respondent and K. O. Anderson.

Respondent further alleged that pursuant to such oral agreement he prepared and planted, in a good and farmerlike manner, approximately 235 acres; that the seed so planted was obtained from appellant; that during the month of July, 1957, the said crop matured and was ready for harvesting; that K. O. Anderson, pursuant to the alleged agreement and at the direction of appellant, entered upon the land where the crop was growing and started to harvest said crop; that shortly after harvesting operations were commenced, appellant notified respondent and K. O. Anderson to cease further harvesting operations; that the crop was rejected by appellant by reason of the presence of a variety of peas in said crop known as 'Austrian Peas' which rendered the crop unfit for appellant's purpose.

Respondent also alleged that the seed which had been furnished him by appellant contained the Austrian Peas which produced the objectionable peas in the crop; that respondent performed all the conditions of the oral agreement on his part to be performed; that appellant breached and violated the express and implied warranties of fitness and suitability of the Perfection pea seed furnished respondent by appellant under said agreement causing respondent damages as prayed for.

Appellant denied the material allegations of respondent's complaint and affirmatively alleged that the pea crop involved was planted, grown and protected under a written contract entered into between K. O. Anderson and appellant. Appellant's answer contained 13 separate defenses, of which a portion of the 3rd, together with all of the 8th, 9th and 13th were stricken by order of the court. Appellant also filed a cross-complaint against a third party, Moscow Seed Company, Inc., from whom the seed peas involved had been obtained by appellant.

This action was consolidated for trial with an action filed by K. O. Anderson as plaintiff v. appellant, seeking damages allegedly resulting from appellant's breach of an oral agreement to harvest the identical crop involved in this the Branom action. A verdict in favor of respondent in the sum of $14,152.88 was returned by the jury and judgment entered thereon, from which this appeal is taken.

Appellant assigns as error the action of the trial court in striking appellant's 9th defense and also a portion of appellant's 3rd defense. The stricken portion of said 3rd defense alleges in substance that one, K. O. Anderson, had entered into contracts with appellant for the raising of green pea crops upon lands owned by himself (K. O. Anderson) and also upon lands owned by one, Mary Hepton, in which crops respondent Branom neither had nor claimed any interest whatever. Such allegations did not involve any issue between the parties to this action and were properly stricken.

Under appellant's 9th defense it was alleged:

'That a custom exists and has prevailed in Nez Perce County, State of Idaho, for many years, and generally known to all processors and growers of peas in said area, that seed dealers to not warrant seed sold by them as to kind or quality, beyond the price of said seed.'

Appellant contends that the seed peas here involved were delivered, planted and the crop therefrom was grown and produced on respondent's land under a written contract between appellant and K. O. Anderson. The contract referred to which is attached to appellant's answer, specifically designates what appellant's responsibilities are as concerns the furnishing of the pea seed. If appellant's contention is correct its obligation relative to the seed would be governed by the provisions of the written contract and evidence of existing or claimed custom would not be admissible to vary or contradict the contract. Gramkow v. Farmers Cooperative Irr. Co., 47 Idaho 578, 277 P. 431; Ehlinger v. Washburn-Wilson Seed Co., 51 Idaho 17, 1 P.2d 188; Puget Sound Nat. Bank v. C. B. Lauch Const. Co., 73 Idaho 68, 245 P.2d 800. Respondent's action was predicated upon an alleged oral agreement under the terms of which respondent contended that he had agreed to plant whatever pea seed was furnished by appellant. The testimony of respondent that he obtained the seed peas involved from appellant's warehouse or place of business is uncontradicted. Under the issues as framed we do not consider that the striking of said allegations prejudiced appellant in its defense in this action.

We have examined the record relative to the claimed error under appellant's assignments 2, 3 and 4, which relate to remarks made by the trial court, and conclude that such assignments are without merit.

Appellant complains and argues at length that the court erred in consolidating for trial this case with the case of K. O. Anderson v. appellant.

Appellant calls attention to a number of remarks or statements by the court and counsel which appellant contends clearly show that confusion existed in the minds of the court, counsel and inferentially the jury, as to which case the evidence was to be applied and what evidence was not admissible in which cases. We do not so interpret the remarks or statements. It must be conceded that when cases are consolidated for trial it sometimes becomes necessary for court and counsel to make explanatory statements regarding the applicability of some of the evidence.

Under this assignment appellant calls attention to I.C. § 12-605, which provides:

'Whenever two or more actions are pending at one time between the same parties in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated.'

Said statute has, to some extent, been abrogated by I.R.C.P., Rule 42(a), however the court's authority to consolidate actions for trial is not thereby more limited and decisions construing or explaining such a statute are helpful in considering the authority conferred by said rule. The language used in said statute or rule neither directs the consolidation of such actions nor limits the court's authority in that respect. Both the statute and the rule are permissive, not mandatory. A statute containing the identical language as used in I.C. § 12-605 has been repeatedly construed and in Realty Construction & Mortgage Co. v. Superior Court, 165 Cal. 543, 132 P. 1048, 1049, the Supreme Court of California said that:

'The section simply expressly authorizes a court to consolidate cases involving causes of action which might have been joined, where, in its judgment, the interests of justice make it proper that a consolidation should be had.'

It is generally recognized that if the actions are such as may be consolidated, and unless by statute or rule consolidation is a matter of right (which is not the situation in this State) the trial court is vested with a discretion to consolidate or refuse to do so, and the exercise of such discretion will not be reviewed except in a case of palpable abuse. 88 C.J.S. Trial § 6, page 24; Realty Construction & Mortgage Co. v. Superior Court, supra; Hassing v. Mutual Life Ins. Co. of New York, 108 Utah 198, 159 P.2d 117; Ward v. Scheeline Banking & Trust Co., 54 Nev. 422, 22 P.2d 358; Fisher v. Nash Bldg. Co., 113 Cal.App.2d 397, 248 P.2d 466; St. George v. Boucher, 84 Mont. 158, 274 P. 489; Thompson v. Mitchell, 128 Wash. 192, 222 P. 617.

This Court has stated that the relative merits of conflicting contentions regarding consolidations of actions for trial can very well be determined by the trial judge by an inspection of the pleadings. Nelson v. Inland Motor Freight Company, 60 Idaho 443, 92 P.2d 790.

In the instant case, according to their complaints, the causes of action here consolidated arose from the same facts. Both actions are based upon an alleged oral agreement with appellant involving both plaintiffs. Each party plaintiff alleged a cause of action against appellant based upon the same transaction, originating at the same time and involving the same parties. From the complaints it would appear that the facts in each case would necessarily be established by the same witnesses in both cases. The fact that appellant elected to bring in another party by way of cross-complaint in each case does not change the issues or alleged facts as between appellant and the two plaintiffs involved. Whenever the court is of the opinion that it may expedite its business and further the interests of the litigants, at the same time minimizing the expense upon the public and the litigants alike, the order of consolidation should be made. Hassing v....