Edmundson v. Taylor

• Decision Date: 27 January 1910
• Citation: 17 Idaho 618,106 P. 991
• Parties: JOHN EDMUNDSON, Appellant, v. ORSON S. TAYLOR, JOHN KEPPNER and DAVID ERICKSON, Respondents
• Court: Idaho Supreme Court

106 P. 991

17 Idaho 618

JOHN EDMUNDSON, Appellant, v. ORSON S. TAYLOR, JOHN KEPPNER and DAVID ERICKSON, Respondents

Supreme Court of Idaho

January 27, 1910

CHATTEL MORTGAGE-FORECLOSURE OF-ANSWER-CROSS-COMPLAINT-ISSUES MADE BY-SPECIFICATIONS OF ERROR-VERDICT-FINDINGS OF FACT-FAILURE TO MAKE.

1. Where an action is brought to foreclose a chattel mortgage and a counterclaim or setoff and a claim for damages because of failure of warranty is set up as a defense, and the question of whether there is anything due the plaintiff under the issues made by the pleadings is submitted to the jury on the evidence and under the instructions of the court, and the jury finds for the defendants in the sum of one dollar, and the court enters judgment thereon, the failure of the court to make further findings of fact is not reversible error.

2. The jury having determined by the verdict that there was nothing due on the promissory note, the payment of which had been secured by the mortgage sought to be foreclosed, it was not neces- sary for the court to make findings of fact on the issues made by the complaint to foreclose said mortgage, aside from the finding made by the verdict of the jury.

3. It is not necessary for the court to make any findings upon issues made by the complaint which are admitted, or not denied, by the answer.

4. Where there is a substantial conflict in the evidence, the verdict of the jury will not be disturbed on appeal.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for Fremont County. Hon. James M. Stevens, Judge.

Action to foreclose a chattel mortgage. Defense, damages for failure of warranty, for personal services and horse feed. Judgment for defendants. Affirmed.

Judgment affirmed, with costs in favor of the respondents.

W. H Holden, and E. M. Holden, for Appellant.

Neither the court nor jury made any findings whatever upon the material issues, or any issue, raised by the pleadings in the equity side of this cause. Therefore, the judgment ought to be reversed and the cause remanded, with instructions to set aside the judgment and retry the case. (Sandstrom v Smith, 12 Idaho 446, 86 P. 416.)

Millsaps & Miller, for Respondents.

The jury and the court both find upon every material issue made by the pleadings, and that was what, if anything, was owing upon the note or whether the defendants owed the plaintiff anything upon the note. When that issue was settled and found upon there was nothing else to settle or find upon material to the case. It was admitted, and not denied, that the plaintiff had a right to foreclose the mortgage and reform the same and subject the property to the payment of the debt or not, provided there was anything owing to plaintiff from the defendants, and if there was not, as a matter of law he could not foreclose the mortgage, and hence any other finding upon any other question was immaterial, and could not have affected the judgment entered. (Standley v. Flint, 10 Idaho 629, 79 P. 815; Tage v. Alberts, 2 Idaho 249 (271), 13 P. 19; Carson v. Thews, 2 Idaho 176, 9 P. 605; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Haight v. Tryon, 112 Cal. 4, 44 P. 318.)

"Where a fact is admitted by the pleadings, a finding in accordance with the admission is unnecessary. And not only so, but a finding contrary thereto will be disregarded." (2 Spelling, Appellate Practice, par. 591; Swift v. Mugridge, 8 Cal. 445; Anderson v. Alseth, 8 S.D. 240, 66 N.W. 320; Parker v. Bank, 3 N.D. 87, 54 N.W. 313; Burnett v. Stearns, 33 Cal. 473; Tracy v. Craig, 55 Cal. 93; Bradbury v. Cronise, 46 Cal. 289.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J. This action was commenced to reform and foreclose a certain chattel mortgage executed by the defendants, who are respondents here, to the appellant to secure the payment of a promissory note for $ 1,500, dated December 2, 1905. The promissory note was executed by the defendants in payment for a certain stallion sold by the appellant to all of the defendants. The defendants filed their answer and cross-complaint whereby they admitted the execution and delivery of said note and mortgage, averred a warranty by the plaintiff to the effect that said stallion was a full-blooded Percheron stallion, registered and recorded under No. 15,808 (19,964) with the Percheron Society of America at Chicago, Ill.; that said stallion was not as represented and warranted; that upon the discovery of that fact they offered to return said stallion to the plaintiff, and demanded the return of said promissory note and the return of the amount or sum that defendants had paid on the purchase price of said horse, and damages by reason of the fraudulent representations and warranty; that said note was procured from the defendants through fraud and misrepresentation and false warranty. They deny that no part of said note has been paid, and aver that $ 850 has been paid thereon, and allege by way of cross-complaint that plaintiff sold and delivered said stallion to them for the sum of $ 2,500 under the representation and warranty stated above; that they purchased said horse relying upon said representations of warranty; that said representations of warranty were false; that said stallion was not a full-blooded Percheron, registered and recorded. but was only a common-grade stallion and was not worth more than $ 350. They then set out the payment of $ 850 on said $ 1,500 note and aver that they had sustained damages in the sum of $ 1,000, and pray that said promissory note and mortgage be canceled and discharged of record; that they have judgment against the plaintiff for $ 550, the difference between the actual and true value of said horse and the sum paid, and for judgment for $ 1,000 damages, and for such other relief as may seem just and meet in the premises.

The plaintiff answered said cross-complaint, denying that he ever warranted said stallion or that he ever made any false representations in regard to him, and by his denials put in issue many of the allegations of the cross-complaint. Upon the issues thus framed the cause was tried by the court with a jury, and the jury found for the defendants and assessed their...