DeAtley Corp. v. Otto, 11247

Decision Date24 August 1973
Docket NumberNo. 11247,11247
Citation95 Idaho 586,513 P.2d 638
PartiesDeATLEY CORPORATION, and Idaho Corporation, Plaintiff-Respondent, v. Ralph OTTO et al., Defendants-Appellants.
CourtIdaho Supreme Court

J. H. Felton, Joseph C. Adams, Jr., Lewiston, for defendants-appellants.

Randall & Bengtson, Thomas A. Madden, Lewiston, for plaintiff-respondent.

BAKES, Justice.

This is an appeal from a judgment entered December 8, 1972, in a breach of contract and mortgage foreclosure action brought by respondent DeAtley Corporation against appellants Ralph Otto and Milan and Darlene Norden, husband and wife.

On March 7, 1966, plaintiff respondent DeAtley Corporation, entered into a written contract with defendant appellant Ralph Otto to extract and crush an initial 35,000 cubic yards of rock on 'Goat Island' located in the Clearwater River near Lewiston, Idaho. Otto and Milan Norden apparently owned the island as tenants in common. The terms of the contract provided that Otto would pay DeAtley $1.20 per cubic yard of rock crushed, payment to be made as the rock was sold by Otto, but in any event no later than three years from 'the date of completion of the crushing of the original quantity under this contract.' Interest was to accrue at the rate of 6% per annum 'from date of completion of the crushing of the rock under this contract until paid.' As security for the payment of the amounts due under the contract, Otto executed a mortgage on the island in favor of DeAtley. Milan Norden, co-owner of the island, executed his written consent to the contract and joined in the execution of the mortgage.

Pursuant to the contract, DeAtley moved its crushing equipment to the island and commenced crushing. After only a day and a half of crushing in March, 1966, high water and flooding conditions caused DeAtley to suspend the operation and remove its equipment from the island. No further crushing or processing was performed until November 4, 1966, when DeAtley returned the crushing equipment to the island. Crushing operations then continued until November 11, 1966, at which time the crushing operation was discontinued by mutual agreement. At the time the operation was suspended, approximately 18,500 cubic yards of rock had been processed. Otto made various small sales of rock from November, 1966, to December, 1967, and made payment to DeAtley in the amount of $3,042 as required by the contract. Thereafter, Otto sold all but 2,000 cubic yards of the remaining rock but failed to make the required payments to DeAtley. In 1969 DeAtley brought suit against Otto to recover sums due under the contract and to foreclose the mortgage on the land.

On September 24, 1972, the trial court granted a partial summary judgment in favor of Milan and Darlene Norden, husband and wife, dismissing DeAtley's complaint against them. 1

The trial court, sitting without a jury, found that the suspension of the crushing operation was by mutual agreement of DeAtley and Otto. The court found that DeAtley complied with all of the terms of the contract and was at all times willing to resume the crushing operation had Otto demanded further performance. The court further found that Otto had materially breached the contract by selling the crushed rock without making payment to DeAtley. The court entered a judgment of $29,199.71 in favor of DeAtley and ordered the mortgage on the island foreclosed. The trial court also found the reasonable value of the island to be $1,600.00.

Appellants first contend that the trial court erred in refusing to grant their motion to dismiss at the close of respondent's presentation of evidence. In Christensen v. Stuchlik, 91 Idaho 504, 427 P.2d 278 (1967), this Court stated:

'This court has held that if a defendant, after denial of his motion for dismissal or for directed verdict made at the close of the plaintiff's case, introduces evidence in support of his case he thereby waives his right to assign error as to the denial of such motion unless such motion is renewed at the close of all the evidence. (Omitting citations).' 91 Idaho at 506, 427 P.2d at 280.

In the instant case, appellant introduced evidence following the denial of his motion to dismiss and failed to renew the motion at the close of all of the evidence. Such action constituted a waiver of any right to assign as error the denial of the motion to dismiss. Christensen v. Stuchlik, supra; Smith v. Sharp, 85 Idaho 17, 375 P.2d 184 (1962).

Appellants next contend in effect that the court erred in its factual findings: (1) that the contract was not terminated in November, 1966; (2) that appellant Otto materially breached the contract by refusing to pay DeAtley for the crushing as the gravel was sold; and (3) that respondent DeAtley complied with the contract in reference to the type and nature of the crushed rock produced.

Findings of fact based upon competent though conflicting evidence will not be disturbed on appeal. Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971); Copenhaver v. lavin, 92 Idaho 681, 448 P.2d 774 (1968); Riley v. Larson, 91 Idaho 831, 432 P.2d 775 (1967); King v. MacDonald, 90 Idaho 272, 410 P.2d 969 (1966). Nothing would be served by delineating in detail the testimony of the witnesses in this case. Suffice it to say that there is ample competent evidence to...

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8 cases
  • Manning v. Twin Falls Clinic & Hosp., Inc.
    • United States
    • Idaho Supreme Court
    • April 8, 1992
    ...the theory on which the case was tried in the trial court. See Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983); DeAtley Corp. v. Otto, 95 Idaho 586, 513 P.2d 638 (1973); Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968); Christensen v. Stuchlik, 91 Idaho 504, 427 P.2d 278 (1967). Thus,......
  • Simplot v. Simplot
    • United States
    • Idaho Supreme Court
    • June 13, 1974
    ...Clerk's transcript, pp. 96-97.14 Enders v. Wesley W. Hubbard and Sons, Inc., 95 Idaho 590, 513 P.2d 992 (1973); DeAtley Corporation v. Otto, 95 Idaho 586, 513 P.2d 638 (1973); Hollandsworth v. Cottonwood Elevator Company, 95 Idaho 468, 511 P.2d 285 (1973).15 Knutsen v. Frushour, 92 Idaho 37......
  • Price v. Aztec Ltd., Inc.
    • United States
    • Idaho Court of Appeals
    • May 30, 1985
    ...the motion at the close of all of the evidence, the right to assign error as to the denial of such motion is waived. DeAtley Corp. v. Otto, 95 Idaho 586, 513 P.2d 638 (1973). If a defendant does renew the motion after electing to put on its evidence, "on appeal from a final judgment [an app......
  • Briggs v. Golden Valley Land & Cattle Co., 11717
    • United States
    • Idaho Supreme Court
    • February 11, 1976
    ...the primary jurisdiction question by relinquishing the entire matter to the IDWA for administration and possible future modification." 95 Idaho at 586, 513 P.2d at Before the appeal was concluded the matter had been relinquished to the IDWA by the district court, and the director apparently......
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