Brown v. Hardin

• Court: Idaho Supreme Court
• Writing for the Court: RICE, J.
• Citation: Brown v. Hardin, 31 Idaho 112, 169 P. 293 (Idaho 1917)
• Decision Date: 11 December 1917
• Parties: W. H. BROWN, Appellant, v. JOHN W. HARDIN, Respondent

169 P. 293

31 Idaho 112

W. H. BROWN, Appellant, v. JOHN W. HARDIN, Respondent

Supreme Court of Idaho

December 11, 1917

MORTGAGE FORECLOSURE-VARIANCE BETWEEN PLEADINGS AND PROOF-CORRECT THEORY-CONFLICTING EVIDENCE-INSTRUCTIONS.

1. Where both parties to an action try their case upon the same theory as to the issue tendered by the pleadings, they are bound by the theory so adopted.

2. Where conflicting evidence upon an issue has been submitted to a jury, the verdict based thereon will not be disturbed.

3. Where the jury has returned a verdict for the defendant upon a counterclaim, and where it cannot be determined from the record whether the verdict was based upon a correct theory of the case or an erroneous instruction delivered by the trial court, such instruction is prejudicial error.

[As to what are proper subjects of instructions to jury, see note in 72 Am.Dec. 538]

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

Action on promissory notes. Judgment for defendant. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellant.

Porter & Smith, for Appellant.

A conflict in the testimony which does not go to the controlling question in the case will not invoke the rule of non-disturbance of the verdict by the appellate court. (Breshears v. Callender, 23 Idaho 348, 131 P. 15.)

The rule, so far as collateral security is concerned, does not force us to realize upon the security, but only to exercise ordinary diligence in handling same, and we are entitled to retain same and do not have to bring suit thereon before proceeding against the original debtor. (Exchange State Bank v. Taber, 26 Idaho 723, 725, 145 P. 1090.)

Longley & Walters and Taylor Cummins, for Respondent.

Where there is some evidence to support the verdict of the jury the judgment will not be reversed. (Lott v. Oregon Short Line R. Co., 23 Idaho 324, 130 P. 88.)

The supreme court will not disturb the verdict of the jury on the ground that the weight of the evidence is against the respondent. (Denbeigh v. Oregon Wash. R. & Nav. Co., 23 Idaho 663, 132 P. 112.)

Though the preponderance of evidence is in favor of appellant, the court will not disturb the verdict and judgment where there is substantial evidence supporting the contention of respondent. (Meeker v. Trappett, 24 Idaho 198, 133 P. 117.)

A note secured by a mortgage is non-negotiable, and the purchaser acquires no better title than his assignor. (Helmer v Parsons, 18 Cal.App. 450, 123 P. 356.)

RICE J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This action was instituted by appellant to recover the balance upon two promissory notes executed by the respondent in favor of Reeves & Company, a corporation of Columbus, Ind., as part payment for a certain threshing engine. The notes had been indorsed by Reeves & Company to the Northville State Bank of Northville, S. D., and by the bank indorsed to the appellant herein. The notes in question were secured by a chattel mortgage executed by the respondent upon the engine, as well as some additional personal property. The respondent admits the execution of the notes. As an affirmative defense to appellant's action he alleged that on or about the 20th day of March, 1910, he, being desirous of leaving the state of South Dakota and of disposing of his holdings therein, entered into an agreement with the bank, the then owner and holder of the notes and chattel mortgage above referred to, to the effect that the threshing engine was to be left with one E. H. Wilson of Northville, S. D., and by him sold with the approval of the bank, and so much of the proceeds of the sale as would be sufficient to cover the amount due on the notes should be delivered to the bank, and the notes of respondent, above referred to, should be canceled and released and the surplus of such sale, if any, should be paid to respondent; that thereafter Wilson sold the threshing engine and other property to one John Larson for a sum greatly in excess of the amount due upon the notes referred to, and that Larson executed his notes for the purchase price and secured the same by a chattel mortgage upon the threshing engine and other personal property, and also executed a real estate mortgage upon a quarter-section of land in South Dakota to secure the notes, and that the notes and mortgage, made as aforesaid by Larson, were accepted by the bank in full settlement of any and all indebtedness the respondent owed to it on account of the two notes sued upon in this action, and upon the further express agreement and promise that all sums to be realized upon the notes and mortgage of Larson, in excess of the indebtedness of respondent to the bank, would be paid by it to him. Respondent further alleged that the bank wrongfully and fraudulently converted and appropriated the notes and mortgage made by Larson to its own use, and that thereafter and without any process of law made a pretended foreclosure of the mortgage originally given by respondent on the threshing engine, the foreclosure being made by a person without any authority of law and not clothed with power so to do, and that by reason of the premises respondent was deprived of his property without due process of law.

The respondent,...