Carey v. Lafferty

• Decision Date: 09 December 1938
• Docket Number: 6563
• Citation: 86 P.2d 168,59 Idaho 578
• Parties: J. M. CAREY, Respondent, v. A. B. LAFFERTY and LAFFERTY TRANSPORTATION COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

86 P.2d 168

59 Idaho 578

J. M. CAREY, Respondent, v. A. B. LAFFERTY and LAFFERTY TRANSPORTATION COMPANY, a Corporation, Appellants

No. 6563

Supreme Court of Idaho

December 9, 1938

RECORD ON APPEAL-MOTION FOR NEW TRIAL-AFFIDAVITS-DOCUMENTARY EVIDENCE, SUBMISSION AFTER CASE CLOSED - OBJECTION THERETO-ASSIGNMENTS OF ERROR-VARIANCE-WAIVER-MEASURE OF DAMAGES.

1. Litigants are bound by the record they make in the trial court, and affidavits cannot be used to establish facts which should have been but were not made part of record in trial court.

2. Litigants' attorneys are under duty to clearly state their contentions to trial judge in order that he may have a fair opportunity to rule thereon, and make such contentions and rulings thereon of record so they may be reviewed in event of appeal.

3. Where motion for new trial was based in part on affidavits the adverse party waived his statutory right to 10 days' notice by appearing by counsel at time and place of hearing motion for new trial and by participating therein without making objection, of record, to proceeding, or applying for additional time in which to serve and file counter affidavits. (I. C. A., sec. 7-604, subd. 1.)

4. The submission of documents to trial judge after conclusion of introduction of proof is improper, and such evidence should on motion, be stricken and disregarded.

5. Where a party litigant knew that documentary evidence had been submitted to trial judge after conclusion of introduction of proof, but did not move against it, nor object to its consideration, such litigants' objection made for first time in Supreme Court was too late.

6. Assignments of error which have not been argued, and in support of which no authority has been cited, will not be considered on appeal.

7. In action for damages for logs alleged to have been lost in transit, variance between allegations of complaint and proof regarding amount of logs delivered for transportation and amount of logs lost was not fatal where defendants were not prejudiced. (I. C. A., sec. 5-901.)

8. If during trial, a party is misled to his prejudice by variance between pleading and proof, he should notify the court of that fact and ask for proper relief.

9. If party during trial fails to object to variance between pleading and proof, he cannot make objection on motion for new trial.

10. Party failing to raise objection of variance between pleading and proof during trial cannot raise objection on appeal.

11. In actions for breach of contract, only such damages will be allowed as fairly compensate the injured party for his loss.

12. In action for damages for logs lost in transit, plaintiff could recover only the net value of logs lost and not recovered.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Parties litigant are bound by the record they make in the trial court, and there is nothing in our practice to justify the use of affidavits to establish facts which should have been made of record there and were not.

II. It is the duty of attorneys for litigants to not only state their contentions to the trial judge, in order that he may have a fair opportunity to rule thereon, but to make such contentions, and the rulings thereon, of record so they may be reviewed in the event of appeal.

III. If motion for new trial is based, in whole or in part, on affidavits the adverse party is entitled to ten days after service of the affidavits in which to serve and file counter affidavits. This right can be waived by the adverse party by participating in the hearing of the motion without making objection, of record, to proceeding, or applying for additional time in which to serve and file counter affidavits.

IV. The submission of documentary evidence to the judge, after the conclusion of the introduction of proof, is improper and such evidence should, on motion, be stricken and disregarded, but where a party litigant knew such documentary evidence had been so submitted to the judge and did not move against it nor object to its consideration, his objection made for the first time in the supreme court comes too late.

V. Assignments of error which have not been argued, and in support of which no authority has been cited, will not be considered.

VI. No variance between pleading and proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits.

VII. If, during the trial, a party is misled to his prejudice by variance between pleading and proof, he should notify the court of that fact and ask for proper relief. Failing to do so, he will not be permitted to raise the question on motion for new trial, or on appeal.

VIII. The established rule, in actions for breach of contract, is that only such damages will be allowed as fairly compensate the injured party for his loss.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for damages for logs alleged to have been lost in transit, and for money alleged to be due on account; also a separate cause of action to procure the conveyance of land from defendants to plaintiff. Judgment for plaintiff and decree requiring defendants to convey the land to him. Modified and affirmed.

Affirmed.

E. V. Boughton, for Appellants.

Our court has repeatedly held that a variance between the pleading and the proof is not material and will not be considered unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. (Aulbach v. Dahler, 4 Idaho 654, 43 P. 322; Merrill v. Fremont Abstract Co., 39 Idaho 238, at 245, 227 P. 34; Newman v. Great Shoshone & Twin Falls Water Power Co., 28 Idaho 764, at 770, 156 P. 111; Bancroft's Code Pleading, vol. 1, sec. 702, p. 987.)

W. B. McFarland and N. D. Wernette, for Respondent.

It is a general rule of law that the plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs. (Bailey v. Brown, 4 Cal.App. 515, 88 P. 518.)

In which case it is further stated that "unless plaintiff obtained leave to so amend his complaint as to conform to the proofs, the defendant may have his non-suit, though the testimony was admitted without objection." ( Tomlinson v. Monroe, 41 Cal. 94; Elmore v. Elmore, 114 Cal. 516, 46 P. 458.)

MORGAN, J. Holden, C. J., Ailshie and Givens, JJ., concur. BUDGE, J., Dissenting.

OPINION

MORGAN, J.

J. M. Carey commenced this action against A. B. Lafferty and Lafferty Transportation Company to recover damages for saw logs which appellants undertook to tow to market for him and which, he contends, were lost in transit; also for money alleged to be due him from appellants on a mutual open account. In a separate cause of action, in the complaint stated, he sought to procure a conveyance of land, from appellants, which he alleged he had caused to be deeded to them as security for the payment of money, which has since been paid. Judgment was for plaintiff, including a decree for the conveyance of the land to him. Defendants made a motion for a new trial which was based, in part, on affidavits filed by them. The motion was overruled and they have appealed from the judgment and decree and from the order denying a new trial. Respondent has moved to dismiss the appeal from the order denying a new trial, on the ground that the motion was prematurely heard, without notice to him and without giving him the statutory time in which to prepare, serve and file counter-affidavits. He also moved to strike the affidavits filed in support of the motion. The notice of motion for a new trial was served and filed January 27, 1938. Therein it appeared that the motion would be based, in part, on affidavits thereafter to be filed. Two affidavits were filed in support of the motion January 31, 1938, and that day a motion for a new trial was served; also a notice that February 5, 1938, at 10:00 o'clock A. M., or as soon thereafter as counsel might be heard, the motion would be presented to the trial judge. February 9, 1938, the judge made and entered an order overruling the motion for a new trial, in which he recited that the cause came on regularly for hearing before him, on the motion for a new trial, February 5, 1938; that defendants appeared by their attorney, E. V. Boughton, in support of the motion, and plaintiff appeared by his attorneys, N. D. Wernette and W. B. McFarland, in opposition thereto.

[I] Respondent relies on I. C. A., sec. 7-604, subd. 1, which relates to motions for new trials, as follows:

"If the motion is to be made upon affidavits, the moving party must, within ten days after serving the notice, or such further time as the court in which the action is pending, or a judge thereof, may allow, file such affidavits with the clerk and serve a copy upon the adverse party, who shall have ten days to file counter affidavits, a copy of which must be served upon the moving party."

He also relies on Peter v. Kalez, 11 Idaho 553, 83 P 526. In that case, this court, construing Rev. Stats., sec. 4441 (I. C. A., sec. 7-604), held that where a motion for a new trial is to be made on affidavits, the adverse party is entitled to ten days after service on him of the affidavits of the moving party, in which to file and serve counter-affidavits and that within the period allowed for filing such counter-affidavits the court had no power to hear and consider a motion for a new trial based on the affidavits of the moving party. That case differs from this one in this important particular: There the motion was presented ex parte and the adverse party did not, in any way, participate in the hearing of it. In ...