Fairbairn v. Keith

• Decision Date: 20 April 1929
• Docket Number: 5106
• Parties: DELLA FAIRBAIRN, Respondent, v. FOREST E. KEITH, Appellant
• Court: Idaho Supreme Court

276 P. 966

47 Idaho 507

DELLA FAIRBAIRN, Respondent, v. FOREST E. KEITH, Appellant

No. 5106

Supreme Court of Idaho

April 20, 1929

TRIAL-FINDINGS OF FACT-SUFFICIENCY-CONSTRUCTION-LANDLORD AND TENANT-SHARE CONTRACTS-CONDITIONS PRECEDENT.

1. Trial court should make findings on all material issues.

2. Findings will receive the most liberal construction the language used will permit in order to sustain judgment founded thereon.

3. Where there is sufficient evidence, if uncontradicted, to support finding, the finding will not be disturbed.

4. Under farm shares contract, held, that payment by tenant of water assessment and amount to be paid for land used for summer pasturage or for raising potatoes were conditions precedent to landlord's duty to divide grain crops, and where tenant had not performed such conditions he could not recover damages from landlord for failure to divide the crops.

5. Under farm lease providing for filling of silos and payment by landlord of $90 of the cost of the filling of silos, where the silos were not filled, payment by landlord held not condition precedent to action by her against tenant for failure to comply with other provisions of the lease.

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. Ed. L. Bryan, Judge.

Action on contract and for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

D. L Rhodes, for Appellant.

The decision is against the law for the reason the court failed to find on all of the material issues. (Turner Agency v Pemberton, 38 Idaho 235, 221 P. 133; Brown v Macey, 13 Idaho 451, 90 P. 339; Stoneburner v. Stoneburner, 11 Idaho 603, 83 P. 938.)

If the plaintiff demanded as a condition to performance on her part, that to which she was not entitled, or refused to comply with the provisions of the lease, the defendant was not obligated to tender performance. (Casey v. Empey, 34 Idaho 244, 200 P. 122; Butterfield v. Harris, 20 Cal.App. 471, 129 P. 614; Northern Colorado Irr. Co. v. Richards, 22 Colo. 450, 45 P. 423; Gorham v. Farson, 119 Ill. 425, 10 N.E. 1.)

Geo. Donart and D. L. Carter, for Respondent.

Findings of fact must be liberally construed in support of the judgment. (Fouch v. Bates, 18 Idaho 374, 110 P. 265; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Fehr v. Hayworth, 33 Idaho 96, 190 P. 248.)

No judgment shall be reversed on appeal for want of findings in writing at the instance of any party who shall not have requested such findings in writing and had such request entered in the minutes of the court and excepted to the failure of the court to make such findings. (People v. Hunt, 1 Idaho 433.)

Where the existence of the right in one claiming it is dependent upon the performance of duties on his part, tender of performance by him is necessary to enable him to sue to foreclose such right. (13 C. J. 662; Anderson v. Wallowa National Bank, 100 Ore. 679, 198 P. 560; Rayburn v. Norton, 117 Ore. 328, 243 P. 560; Rathbun v. Security Mfg. Co., 82 Cal.App. 793, 256 P. 296.)

BUDGE, C. J. Givens, Wm. E. Lee and T. Bailey Lee, JJ., and Baker, D. J., concur.

OPINION

BUDGE, C. J.

Appellant and respondent entered into a lease or farm shares contract, appellant's possession beginning on December 12, 1924, and ending March 1, 1926. This is an action to recover for an alleged failure on the part of appellant to comply with the provisions of the lease. Among other things, it is alleged in the complaint that appellant went into possession of the premises, that he failed and neglected to properly cultivate and irrigate the same, that he used a portion of the lands exclusively for pasturage which he did not pay for, that he failed and neglected to pay the water assessments provided to be paid in the lease, and refused to make settlement for certain lands planted to potatoes. Appellant admitted in his answer that he did not pay the water assessments, denied that he had not properly cultivated and irrigated the premises, denied that any of the lands had been used exclusively for pasturage, and affirmatively alleged that after the lease was executed it was modified so as to provide that if any of the lands in question should be planted to potatoes, such land should be paid for on the same basis as if sown to grain, and that he was and at all times had been ready, willing and able to comply with all the terms and provisions of the lease, but that respondent had refused to comply with the provisions of the lease on her part, and particularly that she had refused to divide the crops grown on the premises unless appellant would divide the potatoes and make settlement for what was known as the slough. In addition to his answer appellant filed a cross-complaint, setting up the lease and alleging that at the time it was executed he was the owner of a large number of cattle, which fact was known to respondent, and that he desired to feed his portion of the crops to said cattle; that respondent refused to divide the crops on proper request, that by reason thereof appellant was not able to feed his cattle and they became poor and shrunk in weight to appellant's damage in the sum of $ 1,500. The case was tried to the court without a jury. Among other findings, the court found that appellant had properly irrigated and cultivated the premises but that he had not settled for the potato ground, the pasturage, or paid the water assessment, but made no specific findings upon the issue raised by the cross-complaint. This appeal is from the judgment.

Appellant's assignments of error may be grouped under three heads: (1) That the court failed to find upon all the material issues of the case; (2) that the court erred in making certain findings; and (3) that the evidence is insufficient to sustain the findings of fact, conclusions of law and judgment based thereon. We will discuss the alleged errors in the order stated.

The rule no doubt is that it is necessary for the trial court to make findings on all material issues. It is also a general rule in this jurisdiction that findings of fact are to be liberally construed in support of the judgment ( Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Fouch v. Bates, 18 Idaho 374, 110 P. 265), and the findings will receive the most liberal construction the language used will permit in order to sustain a judgment founded thereon. (Eastwood v. Standard Mines etc. Co., 11 Idaho 195, 81 P. 382; Wilkinson v. Bethel, 13 Idaho 746, 93 P. 27; Nelson Bennett Co. v. Twin Falls L. etc. Co., 14 Idaho 5, 93 P. 789.) From an examination of the evidence we have reached the conclusion that the findings meet the material issues presented by the pleadings and are sufficient to sustain the judgment.

It is next contended that the trial court erred in making certain findings. Under the rule announced above regarding the liberality to be accorded findings in support of the judgment entered thereon there is no merit in this contention.

Appellant's third contention is that the evidence is insufficient to sustain the findings, conclusion and judgment. Under this head appellant contends that the evidence is insufficient to show that any portion of the...