Darry v. Cox

• Decision Date: 08 February 1916
• Citation: 28 Idaho 519,155 P. 660
• Parties: CHARLES DARRY, Respondent, v. J. F. COX, Doing Business Under the Firm Name of COX BROTHERS, and B. J. CARNEY COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

155 P. 660

28 Idaho 519

CHARLES DARRY, Respondent, v. J. F. COX, Doing Business Under the Firm Name of COX BROTHERS, and B. J. CARNEY COMPANY, a Corporation, Appellants

Supreme Court of Idaho

February 8, 1916

CONSTITUTIONAL LAW-TITLE TO LEGISLATIVE ACT-ADVERSE PARTY AS WITNESS-EXHIBITS ADMITTED CONDITIONALLY-CONFLICT IN EVIDENCE.

1. The act of the legislature approved March 13, 1909 (Sess. Laws 1909, p. 334), permits a party to a civil action, or proceeding, to call as a witness the adverse party, or other person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers superintendent or managing agents of any corporation which is a party of record in the case, and to examine such witness as if under cross-examination. The purpose of this act is sufficiently expressed in the title, and meets the requirements of sec. 16, art. 3 of the constitution.

[As to constitutional provisions relating to sufficiency of title of statutes, see note in 79 Am.St. 456.]

2. Where it appears from the record that the trial court sitting without a jury, admitted certain exhibits in evidence conditionally, the conditions being that respondent would make a showing which would give the court some ground to act upon them, and where no showing was made in that behalf, there is nothing in the record to indicate that the court acted upon them, or considered their contents in reaching its conclusion, it will be inferred that it disregarded the exhibits, and their admission, under these circumstances, was not prejudicial error.

3. Where a debtor seeks to show payment by receipts, canceled checks or other vouchers, which appertain to another transaction than that embraced within the issues framed by the pleadings, it is clearly proper to admit evidence tending to show that fact to the end that he does not receive credit to which he is not entitled.

4. The rule that an appellate court will not disturb the judgment of a trial court, because of conflict in the evidence, where there is sufficient proof, if uncontradicted, to sustain it applies with equal force in actions at law and suits in equity where the decision is based upon oral evidence.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action to foreclose lien. Judgment for plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondent. Petition for rehearing denied.

J. F. Ailshie and J. Ward Arney, for Appellants.

The title to the act is misleading, and does not give notice of or conform with the contents of the body of the act, and runs counter to sec. 16, art. 3, of the state constitution. (Turner v. Coffin, 9 Idaho 338, 74 P. 962; Katz v. Herrick, 12 Idaho 1, 86 P. 873; Gerding v. Board of County Commrs., 13 Idaho 444, 90 P. 357.)

If this act were found to be a valid statute, it still does not intend to or contemplate permitting the plaintiff, before introducing a word of testimony, to call the defendant and cross examine him. Independently of statute, no such right ever existed. "The right to cross-examine is, however, conditioned by the existence of a direct examination. No right exists in the absence of direct examination." (1 Chamberlayne, Modern Law of Evidence, sec. 378.)

"A mere guess by witnesses is not sufficient to make a substantial conflict in the evidence." (Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101, 66 P. 933; Wilson v. Vogeler, 10 Idaho 599, 79 P. 508; Village of Ilo v. Ramey, 18 Idaho 642 112 P. 126.)

McFarland & McFarland, for Respondent.

The objection should be grave and the conflict between, the constitution and the statute palpable before the judiciary should hold the statute unconstitutional. (Butler v. City of Lewiston, 11 Idaho 393, 83 P. 234; Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 101 Am. St. 201, 68 P. 295.)

The court will not disturb a judgment on the ground of insufficiency of the evidence where there is a conflict of evidence and competent evidence to support the findings of the lower court. (Hufton v. Hufton, 25 Idaho 96, 136 P. 605; Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133; Henry Gold Min. Co. v. Henry, 25 Idaho 333, 137 P. 523; Richardson v. Bohney, 26 Idaho 35, 140 P. 1106.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This action was commenced for the purpose of foreclosing a lien filed in order to secure payment for labor performed and assistance rendered by respondent in hauling and skidding 3,000 cedar poles for and at the instance and request of appellant Cox.

It is alleged in the complaint that on or about the 6th day of May, 1914, Cox employed respondent to perform the work and agreed to pay him one cent per lineal foot for all poles which he hauled and skidded; that pursuant to their agreement he hauled and skidded 219,750 lineal feet of poles between May 6 and September 10, 1914, and that there became and was due to him, under the contract, the sum of $ 2,197.50, no part of which was paid except the sum of $ 1,392.50, and that there is still due to him, after deducting all just credits and offsets, the sum of $ 805, for which amount he asks judgment, together with costs and attorney's fee, and for the foreclosure of his lien. The filing of claim of lien is duly alleged and a copy thereof is attached to the complaint as an exhibit.

In their answer appellants admit that the agreement was entered into, but deny that respondent hauled or skidded 219,750 lineal feet of poles or any other or greater amount than 200,904 feet, and they deny that there is due or owing or unpaid to him the sum of $ 805, or any sum at all, and allege that he has been paid in full for his labor and services. By way of counterclaim and cross-complaint it is alleged that on and between May 6 and September 10, 1914, respondent was indebted to appellants in the sum of $ 2,487.77 for goods, furnishings, supplies, outfits, clothing, foodstuffs and materials sold and delivered to him, and for labor of men, horses and teams of horses, and for services rendered to him between the above-mentioned dates, by appellants, at his request and for his benefit; that no part of said sum has been paid except $ 2,239.57, for which he has been given and has received full credit; and that there is now due, owing and unpaid from respondent to appellants, after deducting all just credits and offsets, the sum of $ 248.20, in which amount they ask for judgment against him.

Trial was had without a jury and the court made findings of fact and conclusions of law and rendered judgment in favor of respondent and against appellant Cox in the sum of $ 590.37, together with attorney's fee and costs, and decreed the foreclosure of the lien. This appeal is from the judgment and decree.

The action of the court in permitting respondent to call appellant Cox as the first witness and to propound questions to him, as if upon cross-examination, pursuant to the provisions of Senate Bill 28, approved March 13, 1909 (Sess Laws 1909, p. 334), is assigned as error. Counsel for appellants urge that the...