Green v. Smith

• Decision Date: 05 July 1923
• Parties: W. L. GREEN, Appellant, v. W. H. SMITH et al., Respondents
• Court: Idaho Supreme Court

217 P. 604

37 Idaho 502

W. L. GREEN, Appellant, v. W. H. SMITH et al., Respondents

Supreme Court of Idaho

July 5, 1923

PLEADINGS - AMENDMENT - DEFENSES - ELECTION - EVIDENCE - OBJECTION NO DEFENSE STATED-VERDICT-MOTION TO DIRECT-APPEAL AND ERROR-DETERMINATION OF CAUSE-AFFIRMANCE.

1. It is not error at the beginning of a trial to permit an amendment otherwise proper, when the adverse party is offered a continuance if surprised and no surprise or prejudice is claimed and he elects to proceed with the trial.

2. Held: Defenses not inconsistent, and not error to refuse to compel defendants to elect.

3. Held: Motion to direct verdict in favor of plaintiff properly denied.

4. Where two affirmative defenses are set up and jury returns a verdict in favor of defendant, if it appears from the uncontradicted testimony in the record, and without any conflict in the evidence that the defendant is entitled to prevail upon one of such defenses, the judgment of the lower court will be affirmed, and it becomes immaterial as to what proceedings were had with respect to the other defenses.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action on two promissory notes. From a judgment for defendants plaintiff appeals. Affirmed.

Judgment of the lower court affirmed, with costs to respondents.

Budge &amp Merrill, for Appellant.

The court erred in denying plaintiff's motion to compel the defendants to elect upon which of the two inconsistent defenses set out in their answer, as amended, they would rely. (Harshbarger v. Eby, 28 Idaho 753, Ann. Cas 1917C, 753, 154 P. 619; Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421; Shirk v. Neble, 156 Ind. 56, 59 N.E. 281; Wheelack v. Barney, 27 Ind. 463; Wilson v. Town of Montecello, 85 Ind. 10.)

The court erred in overruling plaintiff's objection to the introduction of any evidence under the so-called affirmative defense pleaded in the answer. (Remy, Schmidt & Pleissinger v. Healty, 161 Mich. 266, 126 N.W. 202; Kemmerer v. Pollard, 15 Idaho 34, 96 P. 206.)

The court erred in denying plaintiff's motion for a directed verdict.

A written contract carries with it the presumption of a consideration and the burden of showing want of consideration is on him who seeks to avoid it. (In re Thompson's Estate, 165 Cal. 290, 131 P. 1045; Garden v. Watson, 170 Cal. 570, 150 P. 994; Cuthill v. Peabody, 19 Cal.App. 304, 125 P. 926; Shelton v. St. Louis & S. F. R. Co., 131 Mo.App. 560, 110 S.W. 627; C. S., secs. 5663, 5664; Gauld v. Gunn, 161 Iowa 165, 140 N.W. 380.)

Peterson & Coffin and Chas. H. Darling, for Respondents.

The trial court did not err in permitting the defendants to amend their answer. (Idaho Placer Mining Co. v. Green, 14 Idaho 294, 94 P. 161; Small v. Harrington, 10 Idaho 499, 79 P. 461; Lowe v. Long, 5 Idaho 122, 47 P. 93.)

The court did not err in denying plaintiff's motion to compel the defendants to elect upon which of the defenses set out in their answer, as amended, they would rely. (13 C. J. 367, 368; Sere v. Darby, 118 La. 619, 43 So. 255.)

The court did not err in overruling plaintiff's objection to the introduction of evidence under defendant's amended answer. (Wells v. Gress, 118 Ga. 566, 45 S.E. 418; Patrick v. Clough, 37 Vt. 421.)

The trial court did not err in denying plaintiff's motion for a directed verdict. (Tipswood v. Potter, 31 Idaho 509, 6 A. L. R. 527, 174 P. 133; Powder Valley State Bank v. Hudleson, 74 Ore. 191, 144 P. 494.)

TERRELL, Dist. Judge. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

TERRELL, Dist. Judge.

--The appellants in the court below sued on two promissory notes, one for $ 600, dated January 2, 1918, due three months after date, and one for $ 1,400, bearing the same date due six months after date, each of said notes being set up as a separate cause of action and containing the usual allegations pertaining to a suit on a promissory note.

The respondents in the court below in their original answer to each of appellant's causes of action admit the execution and delivery of the notes but deny liability thereon, and on information and belief deny that the plaintiff is the owner and holder thereof. The respondents in paragraph one of their original answer to each of appellant's causes of action, and as an affirmative defense to each cause of action, set up the following: "and further answering said first cause of action and as an affirmative defense thereto these defendants allege that the note set forth in said first cause of action was given as a part of a contract between the parties hereto, a copy of which said contract is hereto attached marked exhibit 'A,' and by reference made a part hereof; that said contract has never been performed in any manner by either of the parties hereto, or by any of the parties to said contract, that the only consideration for the promissory note set forth in plaintiff's first cause of action was the consideration expressed in said contract, and that by reason of the fact that said contract itself has been breached by both parties hereto that there is not now due and owing from these defendants to the plaintiff any sum whatever."

The same affirmative defense was likewise set up to appellant's second cause of action.

On May 23, 1921. the day of the trial, counsel for respondents filed a motion wherein they moved for leave to amend by adding a paragraph four to their answer to each of appellant's causes of action, a copy of the proposed amendment having been served upon counsel for appellant the previous day. On the same day, viz., May 23, 1921, before the selection of a jury said motion was called up and allowed over objection of counsel for appellant. Said amendment reads as follows:

"4. That the note set forth herein was given without consideration, and that there has been a total failure of consideration in this that the machines known as Domestic Gas Makers as set forth in the contract, exhibit 'A' hereto attached, were defective, such defect being of a latent character known to the plaintiff herein but not known to the defendants, and that by reason of such defect it became and was impossible to market the same, and the said machines as an article of commerce and merchandise were at said time a total failure as the plaintiff well knew, and that by reason of the said facts aforesaid, no machines were ever ordered, purchased or delivered under the contract above set forth, and referred to as exhibit 'A' attached to the answer."

Counsel for the appellant thereupon made the following motion:

"Mr. Merrill: Comes now the plaintiff and moves that the defendants be compelled to elect upon which of the two inconsistent positions taken in their answer, as amended, viz., whether they are going to rely upon the defense of want of consideration, or whether they are going to rely upon the defense of a failure of consideration, and in the event that they fail to make an election that the court proceed to strike out from their answer, as amended, all matters and things respecting the second inconsistent and attempted defense, viz.: those matters referring to a failure of consideration."

This motion was by the court denied.

After the selection of the jury and the submission of appellant's case, and at the beginning of respondents' case, appellant made the following objection:

"Mr. Merrill: May it please the court, we object to the introduction of any evidence under their so-called affirmative defense in this case, upon the ground and for the reason that there is no substantial or any defense whatever to these promissory notes pleaded; that any purported defense herein is sham and frivolous," which objection was by the court overruled.

During the submission of proof by respondents certain evidence went in over appellant's objection which is assigned as error by appellant, and at the conclusion of the testimony of the respondents appellant moved for a directed verdict which was by the court denied; and at the conclusion of all evidence taken in the case appellant renewed his motion for a directed verdict, and also his motion to require the defendants to elect, both of which motions were by the court denied.

The jury returned a verdict for the defendants upon which judgment was duly entered, from which judgment plaintiff appeals. Appellant makes the following assignment of errors:

1. The court erred in permitting the defendants to amend their answer at the time of the trial.

2. The court erred in denying plaintiff's motion to compel the defendants to elect upon which of the two inconsistent defenses set out in their answer, as amended, they would rely.

3. The court erred in overruling plaintiff's objection to the introduction of any evidence under the so-called affirmative defense pleaded in the answer.

4. The court erred in denying plaintiff's motion for a directed verdict.

5. The court erred in permitting W. H. Smith to testify as to what Mr. Green said in respect to the burners at the time the contract was made.

6. The court erred in permitting the witness J. W. Smith to testify as to what was said by the plaintiff at the time of the signing of the notes in question with respect to this appliance.

7. The court erred in admitting the testimony of witness W. H. Smith to the effect that plaintiff stated at the time contract was entered into that they (defendants) would have the services of a certain Mr. Cook in case something happened.

With reference to appellant's first assignment of errors as to the amendment to respondents' answer, the record discloses the following:

"Mr Coffin: Before we examine the jury we might call up that amendment.

"The Court: Have you any objection?

"Mr. Merrill:...