Gem State Sales Company v. Rudin Brothers, Inc.

• Decision Date: 19 February 1935
• Docket Number: 6123
• Citation: 41 P.2d 614,55 Idaho 299
• Parties: GEM STATE SALES COMPANY, a Corporation, Respondent, v. RUDIN BROTHERS, INC., Appellant
• Court: Idaho Supreme Court

41 P.2d 614

55 Idaho 299

GEM STATE SALES COMPANY, a Corporation, Respondent, v. RUDIN BROTHERS, INC., Appellant

No. 6123

Supreme Court of Idaho

February 19, 1935

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. A. O. Sutton, Judge.

Action for balance due on contract. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Hawley & Worthwine, for Appellant.

The evidence was not sufficient to justify the verdict. (Gagnon v. Molden, 15 Idaho 727, 99 P. 965; 48 C J., p. 641, par. 83; 20 Cal. Jur. 955.)

George Donart and Norris & Kenward, for Respondent.

The weight or probative sufficiency of evidence is always a question of fact for a jury. (64 C. J. 303-308; Berryman v. Dore, 43 Idaho 327, 251 P. 757; McCornick & Co v. Tolmie Bros., 42 Idaho 1, 243 P. 355; Webster v McCullogh, 45 Idaho 604, 264 P. 384.)

GIVENS, C. J. Budge, Holden and Morgan, JJ., and Koelsch, D. J., concur.

OPINION

GIVENS, C. J.

Respondent sued appellant for an alleged balance of $ 3,139.89 for purchasing, packing and delivering prunes, recovering a verdict for $ 835.20 on the claimed contract, entered into by appellant through Cornfield, its agent and secretary-treasurer, and respondent through Fawcett, its president and manager, that it was to buy approximately 45 carloads of prunes (50 was the full amount) in Oregon and thereafter sort, grade, pack, load and ship them on cars to appellant or at the direction of appellant, for the cost of the prunes, $ 15 per ton, plus all expenses and $ 20 a car brokerage. Appellant admitted such to be the contract but alleged a complete and final settlement and payment in full of all money due.

Appellant's sole ground for reversal is that the evidence in support of respondent, viewed in the light of all the circumstances, is so inconsistent and defective and so improbable and inherently false as to amount to an insufficiency of evidence to support the verdict, hence justifying and demanding a reversal as a matter of law; and that the force and effect of respondent's Exhibit 7 as a receipt culminating the alleged final settlement has not been overcome by incumbent clear and satisfactory proof.

The contract, whatever it was, was oral, progressively changing consequent to conferences between Fawcett and Cornfield at Payette and the Milton-Freewater prune section in Oregon, the actual scene of operations.

Prunes were purchased by the respondent and packed by, or under its supervision, and delivered on the cars to appellant. Appellant from time to time advanced certain moneys and finally, on September 13th-14th, 45 cars of prunes having been delivered, a conference or negotiation took place between Fawcett and Cornfield at Walla Walla, Washington, where Fawcett prepared and delivered to Cornfield, respondent's Exhibit 7, entitled "Cars Shipped for Rudin Brothers," giving the date of shipment, car number and value, at 46 1/2 cents per basket or 25.3 cents per suitcase, according to the car content, with respective "Dr." and "Credit" columns identical in amount for 44 cars, and one "Dr." designated car, $ 450.20, with no corresponding item under the "Credit" column; and the following items, "Additional cost of packing charges, $ 865.00," which appellant contends was half of the amount claimed by respondent as its loss on the entire transaction, which loss Cornfield stated he was willing to share because appellant had made money on its end of the deal.

There were two other items, which with a check for $ 835.20 under the "Credit" column balanced the "Dr." column, containing in addition to the cars, the $ 865 above noted, with this statement at the end: "Received settlement in full of cars. Gem State Sales Company, by E. C. Fawcett, President."

Appellant strenuously argues this receipt can only mean full settlement, and that the matter was entirely closed at the conference in Walla Walla. Respondent, on the other hand, contends this document merely relieved respondent from furnishing the full number of 50 cars, and that final financial settlement awaited further action to be taken at Payette. The real issue, therefore, from appellant's standpoint in connection with its claim of insufficiency of the evidence to support the verdict and the erroneous refusal by the court of a nonsuit or instructed verdict, hinges not on what the contract was, but whether there was a final and complete settlement at Walla Walla, and in that connection, if there is evidence in the record sufficient to reasonably justify the jury's reliance thereon in rendering the verdict it did, appellant's point is squarely met, and under the well-known rule which it concedes, no matter however much the conflict is, the verdict may not be disturbed. In other words, it is not how plausible an interpretation may be placed on the evidence in favor of appellant but we must consider whether everything, taken in its most favorable light in favor of respondent, is insufficient.

Appellant's first charge of unreasonableness is that Fawcett contended he was entrusted with the packing operations without any definite agreement, but that from his packing operations he was going to try to determine the package basis cost and next sets up as an inconsistency or weakness in respondent's position that it is illogical to assume a 46 1/2 cents basis would coexist with an expense and cost agreement as pleaded by respondent. Yet Cornfield himself stated they started out on the theory of 6 cents a basket for labor and other incidentals, and that he would pay 8 cents, splitting the profit between 6 and 8 cents.

If it was illogical for respondent to start on a basis of 46 1/2 cents, and still continue to rely on actual costs as the basis for settlement, it would seem Cornfield's position was no more definite or logical when he started from a basis of 6 and 8 cents. Cornfield concededly kept no account of the costs of packing, but relied on respondent and though he testified he was denied access to Fawcett's books, he conferred frequently with Fawcett as to what the operations were costing, and even at the conference in September when respondent's Exhibit 7 was prepared and delivered, Cornfield again went over the figures as to the cost with respect to whether or not he would, according to his contention, settle on a basis of 46 1/2 cents and 25.3 cents, and the jury may have legitimately construed all this in line with respondent's contention. Cornfield made advances from time to time and if these were only on the basis of 46 1/2 cents and 25.3 cents, checking on the amount of prunes shipped out, as he could and did, he would always know if these advances were in excess of the price on that basis. If, however, he depended on the actual cost of operation, which would be in line with respondent's contention, he would of course have to keep track of the cost, as he did, to see that he did not over-advance. Whether or not the deductions above noted were the most reasonable or probable or the ones that actuated the jury, we do not know or say, nor need we, we merely call attention to their juristic availability.

Cornfield admits he paid more than initially obligated to, merely for the purpose of decreasing what respondent claimed and attempted to show at the beginning of the conference was its loss of over $ 3,000. It was for the jury to say whether Cornfield was thus gratuitously generous or under compulsion of the contract, the final accounting to be at Payette, as inferable at least in part, from portions of the testimony of Miss Gorton adverted to post. Fawcett testified he had all his records at the trial, was cross-examined at length on them, and respondent's Exhibit Q, which he claimed was a statement of his costs, showing a balance due of $ 3,807.98, was admitted and its force and weight was for the jury.

Fawcett testified he wanted to go to Payette for the final settlement. Cornfield testified the matter was finally arranged at Walla Walla and no further negotiations contemplated. Miss Gorton, the only other party who was apparently present all during the conference, in a way contradicts both of them, as will appear from the following:

"Q. What did Mr. Fawcett say to Mr. Cornfield when they finally settled the whole matter.

"A. It was terribly late at night--or morning. Mr. Fawcett said 'Let's get the matter cleaned up tonight?' Mr Cornfield wanted to take time. Mr. Fawcett said 'Let's get the matter straightened up so I can see the Growers?' He said 'If you will give me this money we will call the deal over and I will never mention this deal again if you will agree to this.' . . . .

"Q. When did Mr. Cornfield say he desired to wait and make a settlement later...