Fish v. Fleishman, No. 9341

CourtUnited States State Supreme Court of Idaho
Writing for the CourtSMITH; KNUDSON
Citation391 P.2d 344,87 Idaho 126
Docket NumberNo. 9341
Decision Date08 April 1964
PartiesFred W. FISH, Plaintiff-Respondent, v. Jim FLEISHMAN, dba Fleishman Lumber Co., Defendant-Appellant.

Page 344

391 P.2d 344
87 Idaho 126
Fred W. FISH, Plaintiff-Respondent,
v.
Jim FLEISHMAN, dba Fleishman Lumber Co., Defendant-Appellant.
No. 9341.
Supreme Court of Idaho.
April 8, 1964.

[87 Idaho 127]

Page 345

Robert F. McLaughlin, Mountain Home, for appellant.

[87 Idaho 128] Vernon Daniel, Payette, for respondent.

SMITH, Justice.

Appellant (defendant) has appealed from a judgment rendered in favor of respondent (plaintiff) for wages, attorney's fees and sums expended by him for appellant's benefit, and costs.

Respondent brought this action for recovery of sums allegedly owing to him as wages and for sums expended by him for appellant's benefit under an alleged oral contract, entered into between him and appellant, for the construction and operation by respondent of a 'scrag' lumber mill for appellant near Mountain Home, Idaho. Respondent also sought recovery of attorney's fees based upon his written demand for payment of his alleged wages, and appellant's refusal to pay the same. I.C. § 45-605. Appellant by his answer denied any indebtedness to respondent, and by cross-claim sought damages founded upon alleged breach of the contract by respondent. The trial court, after trial without a jury, and [87 Idaho 129] upon entry of findings of fact and conclusions of law, entered judgment in favor of respondent for $6,903.22 in unpaid salary, $800.00 attorney's fees and $1,281.16 paid by respondent for appellant's benefit, together with costs.

Appellant by certain of his assignments of error questions the sufficiency of the evidence to support the trial court's findings, conclusions and judgment. Those assignments require a review of the evidence for the purpose of determining whether the trial court correctly resolved the issues.

Appellant is engaged in the wholesale lumber business with principal offices in Portland, Oregon. During 1959, he began looking for an experienced millwright to supervise the construction of a 'scrag' lumber mill near Mountain Home to process timber which he had purchased. The negotiations of respondent and appellant on several occasions, concerning construction of

Page 346

such a mill, culminated in an oral agreement between them entered into on or about November 8, 1959. Under the agreement, respondent was to have complete charge of the construction of the mill, make all purchases necessary for its construction, pay the bills therefor subject to reimbursement by appellant or forward the bills to appellant for payment, and operate the mill when constructed. Respondent also was to negotiate for the land, electrical power and water supply necessary for construction and operation of the mill.

At the time of contracting, the parties estimated that the cost of the mill would approximate $30,000 and that its construction would require about 90 days. As compensation for his services, respondent was to receive $1,000 a month during the period of mill construction, and then 10% of the net profits to be derived from its operation. Respondent commenced work on November 15, 1959. Appellant paid respondent compensation of $1,500 covering the 2-week period in November, and all of December, 1959. Respondent continued on the job until July 28, 1960, but received no further compensation for his services. He paid certain construction costs of $1,281.16 for which he was not reimbursed. Due to delays in leasing necessary real property, actual construction did not begin until February 15, 1960. Further delays in arranging for the electric power and water supply forestalled completion of the mill until late September 1960. While appellant had invested approximately $100,000 in its construction, the mill never became fully operational, and only a minor quantity of lumber was processed in it during October 1960.

On September 6, 1960, respondent made written demand upon appellant for unpaid salary in the sum of $7,000; upon appellant's refusal to pay the salary and certain construction items, respondent commenced [87 Idaho 130] this action January 5, 1961, for recovery thereof and for attorney's fees.

The trial court did not rule upon the issues presented by appellant's cross-claim. The trial court was correct in not so ruling inasmuch as appellant failed to show the extent of his compensatory damages on account of alleged breach of the contract, and loss of anticipated profits. Belts v. State ex rel. Dept. of Highways, 86 Idaho 544, 388 P.2d 982 (1964); Williams v. Bone, 74 Idaho 185, 259 P.2d 810 (1953); Harrington v. Hadden, 69 Idaho 22, 202 P.2d 236 (1949). Moreover appellant's brief does not 'contain a distinct enumeration' of any assignment of error committed by the trial court, nor citation of authority or argument thereon, thus precluding review on appeal in the premises. Supreme Court Rule 41; Batchelder v. City of Coeur D'Alene, 85 Idaho 90, 375 P.2d 1001 (1962); Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962).

Appellant contends that the trial court erred in admitting the voucher portion of a check, over appellant's objection, to show a salary payment of $1,500 less applicable tax deductions (including $231.80 federal withholding tax). The date of execution of the check as well as the names of the maker and payee do not appear on the voucher; there is a typewritten notation thereon, 'Salary $1500.00,' and a pencil written notation, 'Nov-Dec.' Respondent testified that the voucher was attached to a salary check received from appellant, as compensation for work performed in November and December 1959. The voucher was not offered in evidence to prove the contents of the check, but to show that respondent had received the payment by appellant's check.

Appellant based his objection on the ground that the voucher was not the best evidence of the existence of a check, and that the check itself should have been produced. Such...

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22 cases
  • Jensen v. Bledsoe, 12169
    • United States
    • United States State Supreme Court of Idaho
    • April 17, 1979
    ...from the written record." Meridian Bowling Lanes, Inc. v. Brown, 90 Idaho 403, 411, 412 P.2d 586, 590 (1966); Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344 (1964); Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063 (1952). Thus if the trier of fact finds a fact to be established by clear and c......
  • Big Butte Ranch, Inc. v. Grasmick, 9722
    • United States
    • United States State Supreme Court of Idaho
    • June 7, 1966
    ...there is no argument thereon contained in its brief, and no oral argument was presented thereon to the court. Fish v. Fleishman, 87 Idaho 126, 391, P.2d 344; Batchelder v. City of Coeur D'Alene, 85 Idaho 90, 375 P.2d 1001; Weaver v. Sibbett, 87 Idaho 387, 393 P.2d 601; Gem Valley Ranches, I......
  • Reed v. Green, 9696
    • United States
    • United States State Supreme Court of Idaho
    • May 18, 1966
    ...court's impressions or conclusions from the written record. Sellars v. Sellars, Page 452 73 Idaho 163, 248 P.2d 1063; Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344; Jackson et al v. Blue Flame Gas Co., These principles are most aptly expressed by Justice Givens in speaking for a unanimous c......
  • Meridian Bowling Lanes, Inc. v. Brown, 9604
    • United States
    • United States State Supreme Court of Idaho
    • March 28, 1966
    ...by this court's impressions or conclusions from the written record. Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063; Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344; Jackson v. Blue Flame Gas Co., In the next five assignments of error appellant contends that none of the conclusions of law rea......
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