Gerry v. Johnston

• Decision Date: 21 January 1963
• Docket Number: No. 9012,9012
• Citation: Gerry v. Johnston, 378 P.2d 198, 85 Idaho 226 (Idaho 1963)
• Parties: Edward C. GERRY, Plaintiff-Cross Defendant and Appellant-Cross Respondent, v. James H. JOHNSTON, Defendant-Cross Plaintiff and Respondent-Cross Appellant.
• Court: Idaho Supreme Court

Page 198

378 P.2d 198

85 Idaho 226

Edward C. GERRY, Plaintiff-Cross Defendant and Appellant-Cross Respondent, v.James H. JOHNSTON, Defendant-Cross Plaintiff and Respondent-Cross Appellant.

No. 9012.

Supreme Court of Idaho.

Jan. 21, 1963.

Thomas A. Mitchell, Coeur d'Alene, for appellant.

William A. Reagan, J. Ray Cox, Jr., Coeur d'Alene, for respondent.

McQUADE, Justice.

Gerry commenced this action to recover damages from Johnston alleging that Johnston had wrongfully cut timber on his land.Johnston filed a cross complaint seeking specific performance of an alleged oral contract between Gerry and Johnston for the sale of certain timber on land owned by Gerry.In the alternative, Johnston sought damages occasioned by the alleged breach of the oral contract by Gerry.

A trial was had and each of the parties made a motion for a directed verdict.The trial judge granted each motion.Defendant Johnston moved for a new trial upon his cross-complaint.This motion was granted as to issues of loss of profits and monies expended in part performance of the contract.Plaintiff, Gerry, did not request a new trial.The subsequent trial was had only upon issues within the purview of Johnston's cross-complaint.

Gerry was the owner of a large tract of standing timber in the Twin Lakes area of Northern Idaho. Johnston was an independent contract logger.For the purpose of discussing logging of his lands, Gerry, early in 1955, sought out Johnston.Together they visited a particular area on Parnell Creek near Twin Lakes.Subsequent to this visitation the two men reached an agreement whereby Johnston was to log certain designated lands.To reach the timber with the logging equipment it was necessary to improve an existing road and construct a new roadway.

In April of 1955the parties agreed that areas on the cast side of Parnell Creek would be logged.Under this oral agreement Johnston claims he was to log all of the merchantable timber.Johnston testified that he logged this area until July of 1955 when a problem of right-of-way over a third party's land arose.

Gerry recalls the agreement differently, and claims that the parties agreed Johnston could cut timber at Gerry's discretion, subject to being stopped at any time.

Johnston asserts that in July or early fall of 1955, a third agreement was entered into between the parties by which Gerry agreed that Johnston could log all merchantable timber in certain prescribed areas.Johnston logged on these lands until November 5, 1956.There was no time limitation by the various agreements of the parties.Gerry insists Johnston gave assurance that he would be out of the area by July 1, 1956.Johnston's version is that Gerry on November 5th advised the lands had been sold and asked Johnston to discontinue logging for a couple of days for Gerry to work out arrangements with the buyer, and thereupon Johnston discontinued operations.

Johnston sought loss of profits and damages by way of reimbursement for roads constructed and improved pursuant to the oral agreements.On the item of roads it was Johnston's theory that this constituted part performance of the agreement.Johnston testified he made these improvements in anticipation of harvest of about one and a half million board feet of timber which was left at the time he was required to stop operations.Although he was unable to testify with preciseness concerning the amount expended upon the roads, nevertheless, Johnston estimated the roads cost him on an allocable basis about $3.41 per thousand board feet of all merchantable timber.Johnston also estimated he built 7.23 miles of new road and rebuilt 9.76 miles of old road.He asked damages in the sum of $5,528.36, on his theory that such sum constituted the allocable share of all road costs in relation to the remaining timber.

At the conclusion of the evidence the trial court granted a motion for a directed verdict in favor of Gerry on the issues of loss of profits, expenses incurred in logging timber cut but not sold, and anticipated profits therefrom.The court instructed the jury that the maximum amount of their verdict for road expense could not exceed $5,528.36.The jury returned a verdict in favor of Gerry on loss of profits as directed by the court and a verdict in favor of Johnston for road expense in the amount of $5,528.36.

Thereafter the trial court entered two judgments.The first judgment was on the directed verdict for Gerry, filed November 28, 1960.The second judgment awarded $5,528.36 to Johnston, and was filed November 30, 1960.

The notice of cross-appeal of Johnston was filed within the sixty day limitation as to the November 30th judgment, but presumptively was not filed within such period of time from the judgment of November 28.This notice of appeal did not designate that it included the first judgment, however, such notice of appeal was amended to include the first judgment.Gerry filed a motion to dismiss Johnston's appeal as to the November 28th judgment on the grounds that it was not taken timely.Johnston resisted this motion on the ground that the first judgment did not make final disposition of the case and further, that no express determination had been made that the judgment should be entered and that no express direction for entry of the judgment was made by the trial court in compliance with I.R.C.P. 54(b).

Under our rules and in the furtherance of orderly administration of justice it is necessary that the trial court make a specific finding that there is no just reason for delay and thereafter expressly direct entry of judgment.Failure to observe this rule precludes the judgment from being final.I.R.C.P. 54(b) is as follows:

'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.'

I. C. Sec. 10-701 defines a judgment:

'A judgment is the final determination of the rights of the parties in an action or proceeding.'

The judgment of November 28th was not the...