Farm Credit Corporation v. Meierotto, 5579

• Decision Date: 16 April 1931
• Docket Number: 5579
• Citation: 298 P. 378,50 Idaho 538
• Parties: FARM CREDIT CORPORATION, a Corporation, Appellant, v. W. C. MEIEROTTO, Respondent
• Court: Idaho Supreme Court

298 P. 378

50 Idaho 538

FARM CREDIT CORPORATION, a Corporation, Appellant, v. W. C. MEIEROTTO, Respondent

No. 5579

Supreme Court of Idaho

April 16, 1931

CONTRACTS-PARTIES RESTRICTED TO TERMS-ACTION-PREMATURE COMMENCEMENT.

1. Parties to contract are held to have intended what is clearly expressed by language used therein.

2. Under terms of assignment of sheriff's certificate of sale, redemptioner's suit against assignee, for balance of purchase price, instituted during pendency of actions to quiet title to land, held premature.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. D. H. Sutphen, Judge.

Action on written contract. Judgment for defendant. Affirmed.

Judgment affirmed; costs to respondent. Petition for rehearing denied.

Alvin Denman, for Appellant.

The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the mutual intention of the parties. (13 C. J. 521; 39 Cyc 1328.)

The respondent waived any right to set up the defense of litigation pending by introducing in evidence papers alleging that the action to quiet title to the property described in the contract was barred by reason of having become res adjudicata. (38 Cyc. 1347; Farm Credit Corp. v. Mulliner et al., 48 Idaho 304, 281 P. 1113; 2 Jones on Mortgages 643; North Dakota Horse & C. Co. v. Serumgard, 17 N.D. 466, 138 Am. St. 717, 117 N.W. 453, 29 L. R. A., N. S 508, 513; 6 Bancroft's Code Practice and Remedies, 6704; Walter v. Johnson, 2 Nev. 354; 39 Cyc. 1349, 1558; 49 C. J. 243, 244; 34 C. J. 1057.)

D. E. Rathbun, for Respondent.

When a purchaser of property retains under written agreement with the seller the last payment to indemnify and hold the purchaser harmless, such payment is not due if litigation is pending by third parties claiming the property purchased; and until the expenses of such litigation are settled. (5 Elliot on Contracts, secs. 4010 and 4011; Milburn v. Milburn, (Ind.) 40 N.E. 1082.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

In its complaint against the defendant, plaintiff alleged it entered into an agreement in writing with the defendant June 21, 1927, by the terms of which it was provided that, whereas the plaintiff was redemptioner under a sheriff's certificate of sale covering certain real property and proposed to assign the certificate to defendant, and whereas Olof Malmgren and another were claiming equities and rights of different nature in said premises adverse to the rights of the holder of the certificate, it therefore was agreed by and between plaintiff and defendant that the certificate of sale be assigned to defendant, he to tender to the sheriff the necessary amount to redeem the certificate and the plaintiff would guarantee peaceable possession of the premises as against Malmgren and the other or any person claiming under them and protect and defend against farm labor liens or the validity of the judgment under which redemption was made; that plaintiff would further guarantee that defendant be held harmless from either of said causes; and in further consideration of said assignment the defendant should, as early as danger of the aforesaid claims be past, pay to plaintiff an additional amount ($ 644.93); and if for any reason redemption could not be made the defendant would be released from liability.

Plaintiff further alleged that on August 30, 1927, in an action wherein several parties claiming interests in the land were parties, a judgment was entered whereby it was ordered and adjudged that defendant was entitled to the peaceable possession of the property in question as against Malmgren, and defendant was allowed and is now in the undisputed possession of said premises; and that on October 1, 1927, a judgment was entered in favor of defendant as against labor liens referred to in the agreement. By reason of these events plaintiff claimed the additional amount agreed to be paid by defendant under the written agreement was due, and prayed for judgment in said sum.

Answering the complaint defendant alleged that the administratrix of the estate of Malmgren, deceased, "is now prosecuting an action against this defendant to quiet title to the land referred to in the contract plaintiff recites," and that the action of the administratrix and the instant case had been ordered merged for the purposes of trial each of said actions being against the defendant and involving the same land. As a conclusion the answer recites "there can be no liability against the defendant on the contract...