Drumheller v. Dayton
| Decision Date | 31 October 1916 |
| Citation | 29 Idaho 552,160 P. 944 |
| Parties | JEROME L. DRUMHELLER, Respondent, v. DENVER P. DAYTON and ALICE M. DAYTON, His Wife, Appellants |
| Court | Idaho Supreme Court |
PLEADINGS-INSTRUCTIONS-NEW TRIAL.
1. The statement of any new matter in an answer in avoidance or constituting a defense or counterclaim is, on the trial deemed to be controverted by the opposite party.
2. Instruction numbered 6 examined and found to be erroneous, in that it assumed that a material controverted fact, in support of which no evidence was offered, had been established. Held that by reason of this error the action of the judge in setting aside the verdict and granting a new trial was proper.
APPEAL from the District Court of the Eighth Judicial District for Boundary County. Hon. John M. Flynn, Judge.
Suit to foreclose mortgage and to recover possession of personal property. Verdict for defendant upon counterclaim set aside and new trial granted. Affirmed.
Order affirmed. Costs awarded to respondent.
J. F Ailshie and J. Ward Arney, for Appellant.
In an action for fraud in the sale of land the measure of damages is the difference between the actual value of the property and its value as represented. (Hines v. Brode, 168 Cal. 507, 143 P. 729; Epp v. Hinton, 91 Kan. 513 138 P. 576, L. R. A. 1915A, 671; Bunck v. McAulay, 84 Wash. 473, 147 P. 36; McDanel v. Whalen, 91 Kan. 488, 138 P. 590.)
While discretion in the matter of granting a new trial is in the trial court, yet that discretion must be exercised in a legal and not an arbitrary manner. (Baillie v. City of Wallace, 22 Idaho 702, 127 P. 911; Wood Livestock Co. v. Woodmansee, 7 Idaho 250, 61 P. 1029.)
Where the trial has proceeded on the theory and understanding that a certain fact is conceded and there is no dispute over it, the losing party will not be allowed to controvert such fact or verdict or finding against him. (Trask v. Boise King etc., 26 Idaho 290, 142 P. 1074.)
The duty fell upon the respondent at the trial to request any other or fuller or more correct instruction, and if the respondent, at that time, failed to ask that the court correct the instruction in respect to the value of the property, the respondent cannot now, after trial and upon motion for a new trial and appeal, make the statement as to the purchase price of the property a ground for a new trial or a basis upon which to predicate reversible error. (Barter v. Stewart Min. Co., 24 Idaho 540, 135 P. 69; Townsend v. Butterfield, 168 Cal. 564, 143 P. 762; Dahlgran v. Chicago, M. & P. S. Ry. Co., 85 Wash. 395, 148 P. 567, 571.)
A. H. Conner, for Respondent.
The question of the contract price of the real estate was material to the respondent's counterclaim; that fact was controverted, and the court erred in assuming it. This is reversible error. (38 Cyc. 1658, and cases cited.)
Where the evidence is conflicting, and the trial judge, who has heard the witnesses and observed their demeanor upon the stand, is of the opinion that the jury was wrong and that their verdict was contrary to the principles of justice, it is his duty, in the exercise of his sound legal discretion, to set aside the verdict and grant a new trial; and if the court so acts, its order granting a new trial will not be disturbed upon appeal. (Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908; Jones v. Campbell, 11 Idaho 752, 84 P. 510; Buckle v. McConaghy, 12 Idaho 733, 88 P. 900; Wolfe v. Ridley, 17 Idaho 173, 20 Ann. Cas. 39, 104 P. 1014; Say v. Hodgin, 20 Idaho 64, 116 P. 410; Cox v. Cox, 22 Idaho 692, 127 P. 679.)
This court has specifically enjoined trial judges not to shirk the responsibility of granting a new trial where they are of the opinion that substantial justice has not been done. (Buster v. Fletcher, 22 Idaho 172, 125 P. 226.)
This action was commenced by respondent to foreclose a mortgage on 160 acres of farm land in Boundary county and to recover possession of certain personal property.
The record discloses that appellants purchased the real estate and personal property in question from respondent on August 17, 1912; that the purchase price agreed upon was $ 10,000; that $ 2,500 thereof was paid in cash; that a prior mortgage, given to secure the payment of $ 5,000, was assumed by the purchasers, and that the indebtedness of $ 2,500 remaining was evidenced by two promissory notes of $ 1,250 each, executed and delivered by appellants to respondent, one due on or before one year and the other on or before two years after the date thereof; that the mortgage, the foreclosure of which is sought, was given to secure the payment of these notes, and that when it was given and as a part of the transaction of purchase and sale, the parties entered into a contract wherein it was agreed, among other things, that appellants should have immediate possession of all the property, and upon payment of the note first to fall due respondent would execute and deliver to them a bill of sale of the personal property. It further appears that at the time of the commencement of this action both notes were, according to their terms, past due, and $ 1,987.77, together with interest thereon from August 17, 1913, remained unpaid.
Appellant Denver P. Dayton, alleged in his separate answer that the note for $ 1,250 first to become due represented the purchase price of the personal property, and, further, by way of counterclaim, that respondent, prior to the purchase and sale of the property, falsely and fraudulently represented to him, and led him to believe, that only four or five acres of the land overflowed, and that water did not remain upon it a sufficient length of time, nor in sufficient quantity, to interfere with the production of crops thereon; that, in truth and in fact, much more than that amount of the land overflowed annually, and that water remained thereon for such a length of time and in such quantity as to make it practically unfit for the production of...
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