Durant v. Snyder

• Court: Idaho Supreme Court
• Writing for the Court: Dunlap, J.
• Citation: Durant v. Snyder, 65 Idaho 678, 151 P.2d 776 (Idaho 1944)
• Decision Date: 17 January 1944
• Docket Number: 7111
• Parties: E. X. DURANT and NELLIE G. DURANT, Respondents, v. H. C. SNYDER and J. W. BRIERLEY, Appellants

151 P.2d 776

65 Idaho 678

E. X. DURANT and NELLIE G. DURANT, Respondents, v. H. C. SNYDER and J. W. BRIERLEY, Appellants

No. 7111

Supreme Court of Idaho

January 17, 1944

On Rehearing July 12, 1944.

1. Husband and wife

A lease of community real property for more than one year, not acknowledged by husband and wife, is not enforceable as such. (I. C. A., sec. 31-913.)

2. Contracts

Where a contract contains illegal provision and a separate legal agreement, latter will be enforced if no necessity exists for reliance upon illegal provision.

3. Contracts

Whether a contract containing illegal provisions is severable, so as to authorize enforcement of legal portions thereof, must be determined from subject matter of agreement and language used therein controls.

4. Contracts

Where a contract is capable of two constructions, construction making it valid is to be accepted over construction making it void.

5. Contracts

Where several things are to be done under a contract, if money consideration to be paid is apportioned to each item to be performed, covenants are ordinarily regarded as severable and independent.

6. Husband and wife

Sales

Where contract pertained to sale of merchandise at stated price and lease of building constituting community realty at stipulated rental, latter portion of which was invalid for want of acknowledgment by wife of lessor, but contract did not prohibit buyer from removing merchandise from premises, or require buyer to carry on business on premises, provisions were severable authorizing enforcement of provisions pertaining to sale. (I. C. A., sec. 31-913.)

7. Contracts

Evidence

Intent of parties to contract is to be ascertained, if possible, by language contained therein, and, if court is unable to determine meaning of contract from its terms, evidence should be received to determine meaning and intention.

8. Contracts

In construing a contract, where language used is clear, court will give effect to language employed according to its ordinary meaning.

9. Contracts

A contract must be given effect according to its terms and court cannot substitute or write a new contract.

10. Contracts

Several instruments made at same time and relating to same subject matter are considered parts of one transaction and construed together for purpose of showing true contract between parties.

11. Guaranty

A "guarantor" is a person bound by a "contract of guaranty," which is an undertaking or promise on part of guarantor which is collateral to a primary or principal obligation on part of another and which binds guarantor to performance in event of nonperformance by such other.

12. Guaranty

No particular form of expression is necessary to create a guaranty.

13. Guaranty

Where guaranty clause was executed by defendants as guarantors contemporaneously with principal contract and prior to signatures of plaintiffs thereto and induced plaintiffs' signatures to contract and plaintiffs transferred possession of valuable property to buyer in reliance upon defendants' guaranty, defendants were "guarantors" of principal contract.

14. Guaranty

Where both principal contract and guaranty clause clearly imparted idea of guaranty of payment by defendants of buyer's obligation to plaintiffs, as sellers, without reference to down payment, guaranty clause could not be construed as merely limiting guaranty to down payment, or merely as an option.

15. Pleading

An application to amend a pleading is directed to discretion of the court. (I. C. A., sec. 5-905.)

16. Appeal and error

Ruling of court upon application for filing of an amendment will not be disturbed unless it affirmatively appears that the court has abused discretion.

17. Pleading

In absence of proper showing and of application within a reasonable time, denial of application for amendment to pleading is not an abuse of discretion.

On Rehearing.

18. Contracts

The fact that a contract is indivisible in certain aspects or for certain purposes does not prevent contract from being divisible in other aspects, or for other purposes.

19. Contracts

A contract is an "entire contract" when by its terms nature, and purpose it contemplates and intends that each and all of its parts and consideration shall be common to each other and interdependent; whereas, a "severable contract" is one which in its nature is susceptible of division and apportionment.

20. Contracts

In determining whether contract is entire or severable, and terms of instrument do not settle question, resort may be had to nature of subject matter with consideration as to whether instrument apportions consideration to each of items, and as to whether whole quantity, service, or thing as a whole, is of essence of contract.

On Rehearing July 12, 1944.

Appeal from the District Court of the Second Judicial District, for Clearwater County. Hon. A. L. Morgan, District Judge.

Affirmed.

Verner R. Clements and Durham & Hyatt for appellants.

Filing of appellants' proposed amended answer should have been allowed.

The statute commands great liberality in allowance of amendments in the furtherance of justice. (Mole v. Payne, 39 Ida. 347; Kroeth v. Empire Mill Co., 9 Ida. 277; Dunbar v. Griffiths, 14 Ida. 120.)

Material amendments to present more clearly the issues in controversy are always favored. (Claris v. O. S. L. Ry. Co., 54 Ida. 575; Mantle v. Jack Waite Mining Co., Ltd., 24 Ida. 629.)

The purported guaranty clause was by its terms an option only and not a guaranty.

A guaranty is not necessarily imported from the use of the word guarantors. (National Sales Co. v. Manciet, (Ore.), 162 P. 1055-1056; Packer v. Benton, (Conn.), 95 Am. Dec. 246.)

The liability of a guarantor is limited to the exact letter of his contract. (W. T. Rawleigh Medical Co. v. Woodward, (Mo.), 230 S.W. 647-649.)

The principal contract in this case was void ab initio, and no liability can be fastened upon appellants.

The contract in this case was entire and indivisible. (Orenstein v. Kahn, (Del.), 119 A. 444.

A contract is entire when by its terms, nature and purpose it contemplates and intends that each and all of its parts and the consideration shall be common to the other and interdependent. (Harshbarger v. Rankin, 50 Ida. 24-30; 17 C. J. S. 785.)

Whether the contract is severable or indivisible must be determined by the court from the subject matter of the agreement and the language used. (Shaw Supply Co., Inc. v. Morgan, 48 Ida. 412-416; Page on Contracts, Vol. 4, Sec. 2085.)

In determining whether a contract is severable, the contract itself and the circumstances surrounding the making of it should be considered. (Spokane Cattle Loan Co. v. Crane Creek Sheep Co., 39 Ida. 801-806.)

A lease of community real estate not acknowledged by the wife is void. (Fargo v. Bennett, 35 Ida. 359; Little v. Bergdahl Oil Co., 60 Ida. 662-670; Burnham v. Henderson, 47 Ida. 690.)

Frank F. Kimble, and Cox, Ware & Stellmon for respondents.

The defendant is not entitled to amend an answer as of course. (Sec. 5-904, I. C. A.; Craven v. Bos, 38 Ida. 722; Farmers & Mechanics' Bank v. Gallaher Inv. Co., supra.)

An application to amend a pleading is directed to the discretion of the court. (Sec. 5-905, I. C. A.; Craven v. Bos, supra; Farmers & Mechanics' Bank v. Gallaher Inv. Co., supra.)

A contract must be construed as a whole, and in the light of the purpose for which it is intended. (Bratton v. Morris, 54 Ida. 743; Clarke v. Blackfoot Water Works, Ltd., 39 Ida. 304; Molyneux v. Twin Falls Canal Co., 54 Ida. 619.)

In construing a written instrument the court will give effect to the language employed according to its ordinary meaning. (Sec. 70-113, I. C. A.; Messinger v. Cox, 33 Ida. 363; Cottingham v. Smith, (Cal.), 82 P.2d 479.)

Several instruments made at the same time must be construed together as one contract. (First Nat'l. Bank v. Reins, 42 Ida. 720.)

When a creditor has parted with his goods in reliance upon a guaranty and any ambiguity exists, it must be construed most strongly against the guarantor. (Lean v. Geagan, (Cal.), 128 P. 792; Kierulff & Ravenscroft v. Koping, (Cal. A.), 271 P. 353; Lamm & Co. v. Colcord, (Okla.), 98 P. 355; First Nat. Bank v. Cleveland, (Okla.), 260 P. 80; Ruby v. West Coast Lbr. Co., (Ore.), 10 P.2d 358.)

Whether a contract is severable or indivisible must be determined by the subject matter of the agreement and when consideration is apportioned between the two subjects, it is severable. (Shaw Supply Co. v. Morgan, 48 Ida. 412; 13 C. J. 561, 563; Pacific Wharf & Storage Co. v. Standard Am. Dredg. Co., (Cal.), 192 P. 847; Hayden v. Collins, (Utah), 63 P.2d 223; Weil v. Stone, (Ind. A.), 69 N.E. 698; McVicker v. McKenzie, (Cal.), 69 P. 495.)

Dunlap, J. Holden, C. J., and Ailshie, J., concur. Budge, and Givens, JJ., dissent.

OPINION

Dunlap, J.

Respondents, husband and wife, brought this action against appellants and one Jim St. Clair, upon whom process in this action was not personally served, to collect the balance claimed to be due on a written contract evidencing the sale by respondents as vendors, to St. Clair as vendee, of a stock of general merchandise in respondents' place of business at Weippe, Idaho. The agreement provides for payment of the merchandise at the inventoried price of $ 11,389.88 with a down payment of $ 2,000.00 (which was paid), and the balance, together with 6% interest, in semi-annual payments on June 1st and January 1st of each year.

By the agreement, the vendors also leased to the said St. Clair real property upon which the store containing the business was located and also other buildings used in connection with the business, together with the furniture and fixtures, and a residence house, at an...