Dunclick, Inc. v. Utah-Idaho Concrete Pipe Co.

• Decision Date: 28 March 1956
• Docket Number: UTAH-IDAHO,No. 8303,8303
• Citation: 77 Idaho 499,295 P.2d 700
• Parties: DUNCLICK, Inc., a corporation, Plaintiff-Respondent, v.CONCRETE PIPE CO., Inc., a corporation, and Idaho Concrete Pipe Co., Inc., a corporation, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 700

295 P.2d 700

77 Idaho 499

DUNCLICK, Inc., a corporation, Plaintiff-Respondent, v. UTAH-IDAHO CONCRETE PIPE CO., Inc., a corporation, and Idaho Concrete Pipe Co., Inc., a corporation, Defendants-Appellants.

No. 8303.

Supreme Court of Idaho.

March 28, 1956.

Garrity & Garrity, Nampa, for appellants.

Jeppesen & Jeppesen, Boise, for respondent.

SMITH, Justice.

The Utah-Idaho Concrete Pipe Co., Inc., a Utah corporation, qualified to do business in the State of Idaho July 1, 1946; its authority to do business in this state remained in effect until December 1, 1952. The Idaho Concrete Pipe Co., Inc., is a going Idaho corporation, in good standing, organized August 3, 1948.

Utah-Idaho Concrete Pipe Co., Inc., at times hereinafter will be designated the Utah company, and Idaho Concrete Pipe Co., Inc., the Idaho company.

Prior to the month of August, 1948, the Utah company owned and operated a concrete products manufacturing plant at Nampa, Idaho. During August, 1948, after organization of the Idaho company, the Utah company transferred its Nampa plant, consisting of its lands and buildings, its concrete pipe making machinery and other equipment, to the Idaho company.

Respondent during January, 1951, purchased from the Utah company certain equipment, and sewer and concrete products, hereinafter called products, to the amount of $5,337.18. The original contract for the sale of the products named the Utah company as the seller and respondent as purchaser. A portion of the products included in the sale were listed on sales slips of the Idaho company. Some of the products purchased were shipped from the Salt Lake City and Ogden places of business of the Utah company, and some, as listed on the Idaho company's sales slips, were shipped from the Nampa, Idaho, place of business of the Idaho company.

Respondent returned certain of the products, as defective, about May 6, 1952, pursuant to an oral agreement whereby, as respondent alleges, both the Utah and Idaho companies accepted the returned products and promised to refund to respondent the sum of $1,335.17 paid originally therefor, less a credit thereon of $420, owed by respondent to the Utah company on the original contract of purchase of the products; this left a balance of $915.17 owing to respondent on the account. Pursuant to said agreement respondent returned the products to the Nampa plant and to the Nampa address given for both the Utah and the Idaho companies. A portion of the products returned to the Nampa plant originally came to respondent from Salt Lake City and Ogden, and some came from Nampa.

Respondent brought this action against both the Utah company and the Idaho company for recovery of said balance of account of $915.17 owing. Respondent alleged that the two companies were doing business in Idaho as a joint venture and that they acted concertedly in such transactions under the name of Utah-Idaho Concrete Pipe Co., Inc. The Idaho company made answer admitting its corporate existence and generally denied all other material allegations of respondent's complaint. The Utah company did not make answer, or otherwise plead.

A jury returned a verdict in favor of respondent, and against appellant Idaho company for $915.17 with interest. The court thereupon entered judgment, joint and several in form, against the two companies in favor of respondent, in said sum of $915.17 with interest and costs.

The notice of appeal shows that both companies perfected appeal from the judgment, whereas, counsel for the Idaho company states that the appeal was taken solely by the Idaho Concrete Pipe Co., Inc.

Appellant assigns error of the trial court in 'admitting testimony as to any conversation held between the plaintiff corporation and Mr. Charles Ward.' The assignment is not well taken because: certain of the testimony was admitted without objection having been made, Goody v. Maryland Casualty Co., 53 Idaho 523, 25 P.2d 1045; certain of the testimony was conditionally admitted, and no motion to strike it, later made, McShane v. Quillin, 47 Idaho 542, 551, 277 P. 554; appellants invited conditional admission of certain of said testimony, Frank v. Frank, 47 Idaho 217, 221, 273 P. 943; the record shows no adverse ruling to form the basis of such assignment and therefore the assignment presents nothing for review, Morton Realty Co. v. Big Bend Irr. & Min. Co., 37 Idaho 311, 316, 218 P. 433; Franklin v. Wooters, 55 Idaho 619, 624, 45 P.2d 804.

Appellant next assigns error of the trial court in denying appellant's motion for nonsuit, and assigns insufficiency of the evidence to support the verdict of the jury. Both assignments raise the question of sufficiency of the evidence and will be considered and disposed of together.

Mr. Ward, an officer of the Utah company, i. e., its manager, instructed respondent to return the products to 'our Nampa plant,' which plant accepted the return of the products and it still had the products at the time of the trial.

Respondent still owed the sum of $420 on the original written contract of purchase, at the time of the return of the products to the plant at Nampa, and that amount of $420 was set off against the amount which became due to respondent for the products returned. This was accomplished by an exchange of checks, each in the amount of $420, between respondent's vice president, Mr. Click, and Mr. Pendrey, manager of the Idaho company at Nampa. The officer, Mr. Pendrey, then gave Mr. Click a typewritten note addressed to Mr. Charles Ward, the general manager of the Utah company, reading as follows:

'Mr. Charles Ward, In checking this invoice in the amount of $1,335.17, it appears that we received everything as shown. By crediting our account with the $420.00 payment, it looks like Utah Idaho still owes Dunclick $915.17. How does that check with your figures? Pete Pendrey.' (Emphasis supplied.)

At the time of such last transaction Mr. Nysingh, office manager of the Idaho company wrote a statement or receipt on the letterhead stationery of Utah-Idaho Concrete Pipe Co., Inc., acknowledging receipt of full payment of the original written contract and handed such statement or receipt to Mr. Click. That letterhead so used by Mr. Nysingh sets out, as one of the addresses of the Utah company, the address of the Idaho company, i. e., 'Nampa, Idaho, 222 Caldwell Blvd.'

A previous statement to respondent, showing the balance of $420 as due on the written contract, is on a statement of Utah-Idaho Concrete Pipe Co., giving its address, 'P. O. Box 69, Nampa, Idaho,' and giving its Nampa telephone number. The printed Utah address and telephone number on the statement is shown...