A. C. White Lumber Co. v. McDonell
| Citation | 44 Idaho 620,258 P. 555 |
| Decision Date | 30 July 1927 |
| Docket Number | 4896 |
| Parties | A. C. WHITE LUMBER COMPANY, a Corporation, Respondent, v. E. D. MCDONELL, Appellant |
| Court | United States State Supreme Court of Idaho |
CONTRACTS-PLEADING-INSUFFICIENCY OF ANSWER-EVIDENCE-BILL OF PARTICULARS PROPERLY ALLOWED-ADVANCE OF MONEY BY CORPORATION - NOTICE OF NO RESPONSIBILITY FOR ACCOUNTS, NO BREACH OF CONTRACT-DAMAGES-RECOVERY FOR BREACH-ERRONEOUS INSTRUCTIONS.
1. Answer in action on debt, admitting that plaintiff had advanced money, but denying there was a balance due thereon or that defendant was indebted to plaintiff, held insufficient to raise an issue of fact, in that it did not contain denial of facts out of which indebtedness was alleged to have arisen, and mere denial of indebtedness was but a denial of a conclusion of law and conclusion of law itself.
2. Where defendant's answer in action on debt did not deny allegations in complaint, every material allegation must under C. S., sec. 6717, be taken as true, and plaintiff's bill of particulars was properly allowed in evidence, as well as certain items therein growing out of other transactions and constituting total amount of indebtedness claimed, and which was not denied in answer.
3. Where corporation advancing money under logging contract had advanced more than total of what would have been due had all logs been delivered, its notification to employees and merchants, with whom contractor was doing business, that it would not be responsible for any money due or to become due and that it would not honor any further orders drawn on it by contractor, did not constitute a breach of contract.
4. In order that contractor could recover for breach of logging contract, it was necessary that he establish that he could have realized a profit on the full performance of contract.
5. Where, under any view of case, appellant would not have been entitled to a recovery, giving of erroneous instructions would not warrant a reversal.
APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Chas. L. Heitman, Judge.
Action on debt. Judgment for plaintiff. Affirmed.
Affirmed.
G. M. Ferris, Cannon & McKevitt and W. J. Costello, for Appellant, cite no authorities.
E. W. Wheelan, for Respondent.
Every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counterclaim, must on the trial be deemed controverted by the opposite party. (C. S., sec. 6717; Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Burke v. McDonald, 2 Idaho 679, 33 P. 49; Wheeler v. Gilmore & P. R. Co., 23 Idaho 479, 130 P. 801; Hays v. Robinson, 35 Idaho 265, 206 P. 173; Cleland v. McLaurin, 40 Idaho 371, 232 P. 571.)
A denial of an indebtedness, without a denial of the facts alleged in the complaint out of which such indebtedness arose, is a denial of a conclusion of law and raises no issue of fact. (Swanholm v. Reeser, 3 Idaho (Hasb.), 476, 31 P. 804; Montana Electric Co. v. Thompson, 36 Idaho 127, 209 P. 722.)
A denial that anything is due upon a contract is a mere conclusion of law. (Wallace B. & T. Co. v. First National Bank, 40 Idaho 712, 237 P. 284.)
In an action upon the contract against the employer for preventing complete performance, the contractor is entitled to recover the contract price for the work actually done, and in the absence of other damages, the difference between that price and what it would cost to perform the contract as to the residue. (Sutherland on Damages, 3d ed., sec. 713.)
Where one is entitled to loss of profits as damages the measure of damages applied is the difference between the contract price and what it would cost the plaintiff to perform the contract, making due allowance for the saving of time and avoidance of trouble and care by reason of not being bound to go on with the contract, and for the hazards incident to full performance. (8 R. C. L., pp. 511, 512; McConnell v. Corona City Water Co., 149 Cal. 60, 85 P. 929, 8 L. R. A., N. S., 1171; Insley v. Shepard, 31 F. 869.)
Respondent brought this action against appellant, alleging in the complaint that at the special instance and request of appellant it had advanced money to him, paid out money on his account and paid out large sums of money to others on orders drawn upon it by appellant, and furnished him goods, wares and merchandise, all of the value of $ 18,901.89, no part of which had been paid except the sum of $ 8,311.20, leaving a balance due of $ 10,590.69, and praying for judgment in that amount.
Appellant's answer to the complaint admitted that respondent had advanced money to him, paid out money on his account and furnished him goods, wares and merchandise, but denied that there was a balance due to respondent of $ 10,590.69, or that he was indebted to respondent in any sum whatsoever.
The answer is insufficient to raise an issue of fact. It does not contain a denial of the facts out of which the indebtedness was alleged to have arisen, and the mere denial of the indebtedness is but a denial of a conclusion of law and a conclusion of law itself. (Swanholm v. Reeser, 3 Idaho 476, 31 P. 804; Montana Electric Co. v Thompson, 36 Idaho 127, 209 P. 722; Bistline v. Hartwigsen, 39 Idaho 208, 226 P. 745; Wallace B. & T. Co. v. First Nat. Bank, 40 Idaho 712, 237 P. 284; Merrigan v. English, 9 Mont....
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