Fuchs v. Lloyd

Decision Date06 June 1958
Docket NumberNo. 8563,8563
Citation80 Idaho 114,326 P.2d 381
PartiesAlbert A. FUCHS, doing business under the firm name and style of 'Fuchs Realty Company', Plaintiff-Appellant, v. Oliver LLOYD and Mary Alice Lloyd, husband and wife, and William G. Hepworth, Defendants-Respondents.
CourtIdaho Supreme Court

Vernon Daniel, Payette, Donart & Donart, Weiser, for appellant.

Yturri & O'Kief, Ontario, Or., Z. Reed Millar, Boise, for respondent Hepworth. Caldwell & Whittier, Pocatello, R. J. Dygert, Payette, for respondents Lloyd.

McQUADE, Justice.

Albert A. Fuchs, doing business under the firm name of Fuchs Realty Company, who is hereinafter referred to as appellant, brought this action against Oliver Lloyd and Mary Alice Lloyd, husband and wife, who are hereinafter referred to as Lloyd, and against William G. Hepworth, who is hereinafter referred to as respondent, for a real estate broker's commission in the sum of $4,000 for the sale of real property. To the complaint, Lloyd cross-complained and asked for the earnest money paid by the respondent to the appellant, which had been deposited with the clerk of the district court by appellant. The respondent cross-complained against both Lloyd and appellant for the return of the $10,000 earnest money.

The district court after trial rendered a judgment for appellant against Lloyd in the amount of $4,000 for respondent and against Lloyd for the $10,000 deposited with the clerk of the court, and against Lloyd's contention that he was entitled to damages for the breach of the contract. Appellant appeals from that portion of the judgment that he take nothing against respondent and that respondent recover the $10,000 held by the district court, and from the whole of said judgment.

On November 7, 1953, Ellis A. White, a real estate salesman for the appellant, secured an employment contract from Lloyd for the sale of the Lloyds' cattle ranch, the descriptive information concerning the ranch contained in the contract having been furnished by Lloyd, the husband. Among other information listed upon the contract form was a section pertaining to the size of the property. This section showed 1100 acres total, 600 acres cultivated and the balance pasture; also included were two items, 660 acres irrigated and 450 acres not irrigated.

Ellis White, in addition to being a salesman for appellant, did business as Northwestern Sales Management Service. On November 9, 1953, an auction was held at the Lloyd ranch, whereat all of the real and personal property was to be sold. In order to induce prospective buyers of the property to be present at the auction, White caused a large advertisement to be placed in the Ontario Argus-Observed, Ontario, Oregon. This ad represented the ranch to be 1100 acres in size, consisting of 800 acres of deeded land and 300 acres of riparian land, and further that 600 acres were in row-crop, hay, grain, and tame pasture, and that 500 acres were in native pasture. Respondent read the advertisement, and, induced thereby, visited the Lloyd ranch at the time of the auction, but did not participate in bidding on the realty.

Respondent, his son, Ellis White, and Chenault, an auctioneer, two or three days before the signing of an earnest money agreement, visited the ranch and made a cursory tour of the premises. There is a conflict in the evidence as to whether two small parcels of property were represented by White and Chenault as being part of the ranch.

Generally, all of the land between the Payette River and Big Willow Creek, which join on the westerly end, and a county road on the easterly side of the property, make up the Lloyd ranch. The northerly boundary is generally steep cliffs, with a fence line running along the ridge line. Parallel and near the base line of this high cliff runs a creek known as Big Willow Creek. The length of the ranch lies easterly and westerly for a distance of approximately two miles. At either end of the elongated property there were several small pieces which are part of the dispute and which did not belong to the ranch. The land on the northerly side of the ranch, between Big Willow Creek and the fence line on the bluffs, was not included in the deed prepared by Lloyd, and comprised an area of approximately 86 acres. Respondent maintains this area was not represented by the real estate salesman or Lloyd himself as being part of the ranch. On the southerly side there were approximately 17 or 18 acres of cultivated land which were owned by a rancher on the other side of the river.

The 17 or 18 acres of land situated on the southerly side of the ranch, belonging to the neighbor across the Payette River, were not enclosed by a fence or other means which might signify the land was other than part of the larger acreage.

After respondent visited the premises with Ellis White, respondent, with White, Lloyd, and Blair Van Slyck, made a trip to Salt Lake City, Utah, relative to the exchange of a bowling alley for the down payment on the ranch, and in addition, to discuss other financing.

Subsequent to Lloyd's and respondent's returning from Salt Lake City, the appellant caused to be drawn and signed by all of the parties, on the sixteenth day of November, 1953, an earnest money receipt for the sale and purchase of the Lloyd ranch. The earnest money receipt appears to be a standard form used in the State of Oregon, which does not have community property law. It appears on the face of the instrument that neither the signature of Mr. or Mrs. Lloyd was acknowledged. The description of the property was not by township and section, but was by general description as follows:

'* * * The Oliver Lloyd's Isaldn Ranch formerly known as the triangle Land and Liverstock Co. Ranch * * * for the sum of One Hundred Sixty One Thousand and no/100 Dollars * * *.'

Respondent, under terms provided in the earnest money receipt, entered into possession of the premises, and while living in a tenant house situated thereon proceeded to disc about 200 acres of land. During this period of time, Lloyd continued to occupy the principal farm house situated on the property.

About one week after the respondent commenced his farming operations, he received a call from Otis Smith, the owner of the property on the southerly side of the Payette River, at which time Smith called to respondent's attention that a small portion of his ranch of 17 to 18 acres lay on the north side of the Payette River, and pursuant to an agreement had been farmed by Lloyd.

Upon learning that the Lloyd ranch did not include that portion owned by Otis Smith, the respondent ceased his farming operations and advised the Fuchs Realty Company that a dispute had arisen concerning the acreage of the property. Respondent caused a survey of the premises to be made, and attempted to negotiate a compromise of his differences with Lloyd. The compromise offered by respondent was on the basis that the ranch consisted of 800 to 900 acres; that he would purchase the property at a $10,000 reduction, and that he had in mind a purchase price of about $140 or $145 an acre. These offers were refused by Lloyd, who on December 7, 1953, sold the entire property for $125,000 to his father-in-law.

The trial judge found the property that had been conveyed to Lloyd was represented to be 1064.245 acres, less certain exceptions; that the property which had been represented by White to the respondent as being property to which Lloyd had title and could make a conveyance thereof, was an area of 895.45 to 900.845 acres, terminating in a deficiency of about 200 acres less than Lloyd had represented the ranch to contain.

Appellant's 15 assignments of error will be consolidated into six.

Appellant assigns as error the admission of the newspaper advertisement as evidence and the finding that the respondent relied upon information in the advertisement.

At the time respondent offered the publication as evidence, there was no objection to its admissibility, and it was therefore properly admitted in evidence by the trial court. The attorney for appellant was present in the courtroom and should have made his objection at that time; he cannot make his objection for the first time on appeal. Webster v. Potlatch Forests, 68 Idaho 1, 187 P.2d 527, 536, disposes of this question as follows:

'We direct attention to Marysville Mercantile Co. v. Home Fire Insurance Co., 21 Idaho 377, 395, 121 P. 1026 1033, where we held: 'This court has so often held that it will not consider or review a question presented to this court for the first time, unless it be a question of jurisdiction, or that the pleading does not state a cause of action, that it seems almost unnecessary to cite the decisions, but the principle is well recognized in the following authorities' (citing cases).

'Further, again, in Grant v. St. James Mining Co., Ltd., 33 Idaho 221, 222, 191 P. 359, we pointed out: 'The rule is well settled that a party cannot avail himself of a defense for the first time in the appellate court, nor will a question not raised in the trial court be considered on appeal.' Recent cases adhering to the rule are: Garrett Transfer & Storage Co. v. Pfost, 54 Idaho 576, 585, 33 P.2d 743; Curtis v. Pfost, 53 Idaho 1, 21 P.2d 73; Johnson v. Diefendorf, 56 Idaho 620, 633, 57 P.2d 1068.'

There was ample evidence from all of the witnesses to support the conclusion of the trial judge in finding the respondent relied upon the acreage representations as set out in the auction advertisement. Under our rule, there being sufficient substantial and competent evidence to support its findings thereon, and the findings not being clearly against the weight of the evidence, the findings of the trial court are binding on this Court and will not be disturbed....

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17 cases
  • Shrives v. Talbot
    • United States
    • Idaho Supreme Court
    • December 8, 1966
    ...(1923); Brooks v. Jensen, 75 Idaho 201, 270 P.2d 425 (1954); Summers v. Martin, 77 Idaho 469, 295 P.2d 265 (1956); Fuchs Realty Co. v. Lloyd, 80 Idaho 114, 326 P.2d 381 (1958); and Janinda v. Lanning, 87 Idaho 91, 390 P.2d 826. Thus this is the law of the case and the Shriveses are bound by......
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    • United States
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    ...the facts which he purported to represent to the buyer. In Summers v. Martin, 77 Idaho 469, 295 P.2d 265 (1956), and in Fuchs v. Lloyd, 80 Idaho 114, 326 P.2d 381 (1958), this court again held that it was incumbent upon the vendor to know the truth of the facts of which he spoke, and that t......
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    • Idaho Supreme Court
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    ...has upon many occasions considered cases wherein the question here presented was dealt with. One of the latest cases in Fuchs v. Lloyd, 80 Idaho 114, 326 P.2d 381, wherein an instrument very similar to the 'Earnest Money Receipt and Agreement' we are herein examining was being considered. I......
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