Glover v. Spraker

• Decision Date: 25 October 1930
• Docket Number: 5562
• Citation: 50 Idaho 16,292 P. 613
• Parties: ORVILLE W. GLOVER, Respondent, v. I. J. SPRAKER, Appellant
• Court: Idaho Supreme Court

292 P. 613

50 Idaho 16

ORVILLE W. GLOVER, Respondent, v. I. J. SPRAKER, Appellant

No. 5562

Supreme Court of Idaho

October 25, 1930

PLEADING-CROSS-COMPLAINT-ANIMALS-BAILMENT-CONTRACTS.

1. Lessor's contention that lessee, as bailee of animals was, under terms of lease, liable for more than ordinary care, held unavailable, where lease was not pleaded.

2. Cross-complaint must state action with same degree of exactness as original complaint.

3. Averments of cross-complaint cannot be aided by allegations contained in main pleadings.

4. Lessee, as bailee of animals for hire, was responsible only for ordinary care.

5. In bailor's action against bailee for negligence when prima facie case is made, burden is on bailee to account for loss of article.

6. In bailor's action against bailee, where bailee has accounted for loss of articles, burden is on bailor to establish negligence on part of bailee.

7. Where bailor accounts for loss of article, and charges it to bailee's negligence until negligence is proven, bailee is not required to offer proof.

8. That lessee, as bailee of animals for hire, failed to notify lessor that horse was sick, held insufficient to prove negligence.

9. Court's construction of lease, giving lessee credit for twenty-nine and one-half tons of hay for each year of lease held improper, lessee being entitled to credit only for one-half of hay fed to milk cows from December 1st of each year till new hay was harvested following year.

10. In construing ambiguous contract, object to be attained should be given prime consideration.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action by Orville Glover against I. J. Spraker for damages for breach of contract and for the purchase price of hay. Cross-complaint by Spraker for loss of livestock entrusted to Glover. Judgment for plaintiff and cross-defendant. Affirmed as to the cross-complaint and reversed and remanded as to the original action.

Judgment affirmed. Costs to be equally divided between parties. Petition for rehearing denied.

P. C O'Malley and G. F. Hansbrough, for Appellant.

The delivery of the horses and the two cows to the plaintiff under the lease was pleaded and the death of same while in the use, possession and control of the plaintiff, which was a sufficient pleading under the statutes of the state of Idaho. (Bates v. Capital State Bank, 18 Idaho 429, 110 P. 277.)

"In the construction of a contract, the court will endeavor to arrive at the real intention of the parties." (Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975.)

"A contract is to be construed so as to give effect to the intention of the parties making it." (D. M. Ferry & Co. v. Smith, 36 Idaho 67, 209 P. 1066.)

"In the construction of a contract, the court should endeavor to arrive at the real intention of the parties, and if there is some room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered and the contract construed in the light of such facts and circumstances, so that the intention of the parties to the contract may be ascertained, if possible, and given effect." (Twin Falls etc. Fruit Co. v. Salsbury, 20 Idaho 110, 117 P. 118; State v. Twin Falls Canal Co., 21 Idaho 410, 121 P. 1039, L. R. A. 1916F, 236.)

J. H. Andersen, for Respondent.

Allegations for a cross-complaint are not to be helped out by any allegations or admissions contained in the main pleadings. (Dunham v. McDonald, 34 Cal.App. 744, 168 P. 1063; Coulthurst v. Coulthurst, 58 Cal. 239; Harrison v. McCormick, 69 Cal. 616, 11 P. 456.)

The laws of Idaho contemplate, recognize and provide for leases of livestock as distinguished from bailments. (C. S., sec. 1955; Hare v. Young, 26 Idaho 682, 146 P. 104.)

LEE, J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

LEE, J.

Plaintiff and respondent, Glover, on November 30, 1925, entered into a contract of lease with defendant and appellant, Spraker, for the rent of the latter's farm, together with certain work horses and milk cows, for a period of one year. Plaintiff brought this action to recover damages arising from defendant's failure to furnish feed for the stock as contemplated by the contract, which provided:

"It is further agreed and understood that the party of the first part is to furnish hay to feed said work stock during the entire term of this lease, and grain during the heavy portion of the farm work. Also hay to feed said cows from the beginning hereof until new hay is harvested and available for feed, from which time to the termination hereof, the milk cows are to be fed from the hay raised upon said premises, undivided, and the work stock from hay furnished by the party of the first part as aforesaid. Provided, However, that if said lease should be determined at the end of one year, then the party of the second part is to leave as much hay on said premises for the use of the party of the first part as is delivered to him by the party of the first part for the purpose of feeding said milk cows, same to be divided equally."

Below the signature of the parties was a memorandum reciting that at the time of signing the lease the hay to be furnished by defendant had been measured and delivered and consisted of 59 tons. At the end of the year, the parties renewed the lease, agreeing, in writing, that the terms of the original contract should apply in toto.

Charging defendant's failure to furnish hay as provided by the contract, plaintiff alleged:

"That the defendant has failed to furnish the hay to feed said cows from the beginning of said lease until new hay was harvested and available for feed during each of the years of 1926 and 1927, and has failed to furnish to exceed one-half of the hay as provided in said lease for feeding the work stock as aforesaid during the two years covered by said lease and the renewal thereof.

"That by reason of the failure of the defendant to furnish the hay to feed said cows and work stock as aforesaid, plaintiff was compelled to and did furnish the hay to feed said cows from the beginning of the lease to the time when new hay upon said premises became available in each of the years 1926 and 1927 and plaintiff was compelled to and did furnish one-half of the hay for feeding the work stock as aforesaid for the entire time that said lease and the renewal thereof remained in force as aforesaid, to-wit, for the years 1926 and 1927."

He then alleged that the market value of the hay so furnished by him was the sum of $ 624, and that defendant had refused, after demand, to pay said damage.

For a second cause of action, he alleged that the defendant had purchased nine tons of hay from him at the agreed price of $ 13 per ton, no part of which had been paid, and the same was past due.

Defendant admitted the execution of the lease and denied generally the remaining allegations of the complaint. As a further defense, he plead that the parties had arrived at a complete settlement regarding the hay, about March 20, 1928, at which time he owed plaintiff $ 87.51, and that plaintiff had subsequently removed some seven tons of hay from the premises. He also filed a cross-complaint, consisting of five causes of action, only two of which are involved in this appeal. In the first of these he alleged that according to the terms of the lease he provided plaintiff with four head of good work horses. That during the month of July, 1927, plaintiff negligently permitted one of said horses to die, to his damage in the sum of $ 100. For his second cause of action in the cross-complaint, he alleged that under the terms of the lease plaintiff was obligated to feed and care for the milk cows in a prudent and farmer-like manner; that he failed to perform his duties in this respect, and negligently allowed the cows to get into a green alfalfa field, whereby two of them became bloated and died, plaintiff making no effort to save them. That the cows were of the reasonable value of $ 100 each, in which sum defendant was damaged. Plaintiff's demurrer to the cross-complaint was overruled.

At the close of defendant's case, the court sustained a motion for nonsuit as to these two causes of action, on the ground that no act of negligence or want of ordinary care was shown.

The jury returned a verdict for plaintiff in the sum of $ 559.90. Judgment for this amount was entered, from which said judgment, defendant has appealed.

In his first specification of error, appellant attacks the order of nonsuit, contending that respondent, as bailee of the animals, was, under the terms of the lease, liable...