Farm Credit Corporation v. Meierotto, 5579

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBUDGE, J.
Citation298 P. 378,50 Idaho 538
Docket Number5579
Decision Date16 April 1931
PartiesFARM CREDIT CORPORATION, a Corporation, Appellant, v. W. C. MEIEROTTO, Respondent

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

[50 Idaho 539] 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...

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4 practice notes
  • Ohms v. Church of Nazarene, 6965
    • United States
    • Idaho Supreme Court
    • October 28, 1942
    ...Seed Co., 51 Idaho 17, 1 P.2d 188; Weed v. Idaho Copper Company, 51 Idaho 737, 10 P.2d 613; Farm Credit Corporation v. Meierotto, 50 Idaho 538, 298 P. 378.) If it was the intention of the parties that what each might receive upon the death of the other should be kept intact and passed on wi......
  • Ehlinger v. Washburn-Wilson Seed Co., 5664
    • United States
    • United States State Supreme Court of Idaho
    • July 2, 1931
    ...parties must be held to have intended what is clearly expressed by the language used. (Farm [51 Idaho 20] Credit Corporation v. Meierotto, 50 Idaho 538, 298 P. 378.) The rule last stated applies in the absence of averment and proof of mistake (13 C. J., p. 524, sec. 485), but it must appear......
  • General Motors Acceptance Corp. v. Turner Ins. Agency, Inc., No. 11538
    • United States
    • United States State Supreme Court of Idaho
    • April 11, 1975
    ...24, § 11 (rev. ed. 1963). 2 Id. at 52, § 21. 3 See Leaf v. Codd, 41 Idaho 547, 240 P. 593 (1925). 4 Farm Credit Corp. v. Meirotto, 50 Idaho 538, 541, 298 P. 378, 379 5 1 Corbin, supra note 1, at 611, § 142. 6 Restatement of Agency Second § 140 (1958). 7 6 Couch on Insurance 2d § 34:29 (1961......
  • Kelley v. Baisch, 6420
    • United States
    • United States State Supreme Court of Idaho
    • November 15, 1938
    ...of the language used. (Molyneaux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A. L. R. 1264; Farm Credit Corp. v. Meierotto, 50 Idaho 538, 298 P. 378; Ehlinger v. Washburn-Wilson Seed Co., 51 Idaho 17, 1 P.2d 188.) The rule that the court may look to the surrounding circumstances,......
4 cases
  • Ohms v. Church of Nazarene, 6965
    • United States
    • Idaho Supreme Court
    • October 28, 1942
    ...Seed Co., 51 Idaho 17, 1 P.2d 188; Weed v. Idaho Copper Company, 51 Idaho 737, 10 P.2d 613; Farm Credit Corporation v. Meierotto, 50 Idaho 538, 298 P. 378.) If it was the intention of the parties that what each might receive upon the death of the other should be kept intact and passed on wi......
  • Ehlinger v. Washburn-Wilson Seed Co., 5664
    • United States
    • United States State Supreme Court of Idaho
    • July 2, 1931
    ...parties must be held to have intended what is clearly expressed by the language used. (Farm [51 Idaho 20] Credit Corporation v. Meierotto, 50 Idaho 538, 298 P. 378.) The rule last stated applies in the absence of averment and proof of mistake (13 C. J., p. 524, sec. 485), but it must appear......
  • General Motors Acceptance Corp. v. Turner Ins. Agency, Inc., No. 11538
    • United States
    • United States State Supreme Court of Idaho
    • April 11, 1975
    ...24, § 11 (rev. ed. 1963). 2 Id. at 52, § 21. 3 See Leaf v. Codd, 41 Idaho 547, 240 P. 593 (1925). 4 Farm Credit Corp. v. Meirotto, 50 Idaho 538, 541, 298 P. 378, 379 5 1 Corbin, supra note 1, at 611, § 142. 6 Restatement of Agency Second § 140 (1958). 7 6 Couch on Insurance 2d § 34:29 (1961......
  • Kelley v. Baisch, 6420
    • United States
    • United States State Supreme Court of Idaho
    • November 15, 1938
    ...of the language used. (Molyneaux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A. L. R. 1264; Farm Credit Corp. v. Meierotto, 50 Idaho 538, 298 P. 378; Ehlinger v. Washburn-Wilson Seed Co., 51 Idaho 17, 1 P.2d 188.) The rule that the court may look to the surrounding circumstances,......

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