Guiles v. Kellar, 7387

• Decision Date: 24 June 1948
• Docket Number: 7387
• Citation: 68 Idaho 400,195 P.2d 367
• Parties: GUILES v. KELLAR, Sheriff, et al
• Court: Idaho Supreme Court

195 P.2d 367

68 Idaho 400

GUILES v. KELLAR, Sheriff, et al

No. 7387

Supreme Court of Idaho

June 24, 1948

Appeal from District Court, Eighth Judicial District, Boundary County; E. V. Boughton, Judge.

See also 68 Idaho 249, 192 P.2d 853.

Affirmed.

Bandelin & Bandelin, of Sandpoint, and W. F. McNaughton and H. S Sanderson, both of Coeur d'Alene, for appellant.

A mortgagee in possession of property is required to use such care and diligence in the collection of rents as a prudent owner in charge of the property would exercise and is accountable for rents not received by it because of wilful default or gross negligence on its part. Conaway v Thomas, 101 Okl. 227, 224 P. 965; First National Bank of Davis v. Currie, 105 Okl. 175, 232 P. 94; Craig v. Burns, 65 Mont. 550, 212 P. 856; Brown et al. v. Leslie, 192 Okl. 43, 133 P.2d 551.

Whitla & Knudson, of Coeur d'Alene, and W. J. Nixon, of Bonners Ferry, for respondents.

Plaintiff alleged execution and delivery of note and mortgage, then attempted to set up as payment a collateral verbal agreement that whatever rent was paid by Boundary County for the use of the equipment was to be credited to his indebtedness. Defendant admitted that whatever was paid was to be credited but that only $ 180 was paid by Boundary County, and that was credited. The court found in Finding No. 3 that the evidence was insufficient to show that any more was due from Boundary County and this finding has not been assigned as error.

It is elementary that payment is an affirmative defense and the burden is upon the party alleging it to prove the same. Jones v. Stoddart, 8 Idaho 210, 218, 67 P. 650; Sheffield v. Cleland, 19 Idaho 612, 618, 115 P. 20.

Givens Chief Justice. Budge, Holden, Miller, and Hyatt, JJ., concur.

OPINION

Givens, Chief Justice.

Respondent, Howard Cooper Corporation, owner of a used tractor and bulldozer, sold them to appellant December 19, 1941, taking in payment therefor a promissory note for $ 1204.00 payable in installments of $ 400.00 on May 1, 1942 and $ 804.00 on October 1, 1942 with interest, secured by a chattel mortgage.

The equipment, prior to that time, had been leased and provisionally optioned to Boundary County at a monthly rental of $ 550.00. This contract had expired December 10, 1941, the County advising they were not going to exercise the option to purchase, but that they might desire to continue using the property to some extent and the property at the time of the sale to appellant was in the possession of the County. Thereafter, the further installments on the purchase price not being paid by appellant, respondent Howard Cooper Corporation instituted foreclosure proceedings of the chattel mortgage by notice and sale, appellant having taken possession of the machinery February 7, 1942. The present suit was instituted by appellant to stay the sale on the theory there was due from the County for the continued use of the machinery $ 1100.00, appellant offering to pay the difference and that respondent Howard Cooper Corporation was crediting him with only $ 180.00, the rental actually paid by the County.

At the conclusion of the trial, the County moved for judgment of nonsuit on the ground and for the reason: "* * * that it appears from the evidence that there was no claim filed against Boundary County as provided for by law and provided by Section 30-2801; there was no verification of the claim as provided by Section 30-1105 (I.C.A.); in fact the evidence bears out my statement that there was nothing due from Boundary County. The exhibit letter from Howard Cooper Corporation shows that they were paid. They made no claim. And the plaintiff, Don Guiles testified he had no claim and at this time I submit that we should be dismissed." The motion was granted.

Notice of appeal was served on the County June 23, 1947. Respondent moved to dismiss the appeal because no copy of the Clerk's transcript or notice thereof was given to or served upon the County, in compliance with Section 11-215, I.C.A. Appellant sought augmentation of the record by having supplied through a certified copy a stipulation entered into November 10, 1947, some five months after the notice of appeal was served, signed by all the attorneys, including the attorney for the County, authorizing a settlement of the reporter's transcript. Since this was a part of the original files below, such motion for augmentation is granted. Newby v. City of St. Anthony, 48 Idaho 608, 284 P. 1028; Eldridge v. Payette-Boise W. U. Ass'n, 50 Idaho 347, 296 P. 1022; Bedford v. Gem Irr. Dist., 51 Idaho 105, 4 P.2d 366.

Respondent makes no claim or pretense it was in any way prejudiced or hampered in the preparation of its brief or the presentation of the case by appellant's failure to serve or give notice to the County of the Clerk's transcript, which includes the reporter's transcript, and while earlier decisions might justify the dismissal under such circumstances, the later opinions under the present rule stress this Court's discretion and that in the absence of prejudice, an appeal should not be dismissed for reasons as urged herein. Clayton v. Barnes, 52 Idaho 418 at 422, 16 P.2d 1056; Idaho Gold Dredging Corp. v. Boise Payette Lbr. Co., 54 Idaho 270 at 276, 30 P.2d 1076. Respondent's motion to dismiss is, therefore, denied.

Appellant contends the Howard Cooper Corporation, as mortgagee in possession, should have collected $ 1100.00 as rental for two full months, the time the machinery was in the possession of the County, though the County only used the machinery ten days during such period, and appellant offered to pay the alleged difference of $ 104.00.

Three issues are thus presented; two of fact and one of law. First, what the agreement was between appellant, respondent and the County with regard to the rental payments after the sale; i. e. contract or quantum meruit. Second, whether the respondent actually was the mortgagee in possession and, third, its liability if it were the mortgagee in possession. The initial and controlling question is what the agreement, express or implied, was between appellant, respondent, and the County. The amended complaint in this regard alleged:

"That prior to the execution of said note the above described personal property had been leased to the said Boundary County, Idaho at a monthly rental of Five Hundred Fifty ($ 550.00) Dollars a month, and said County had an option to purchase the equipment said option providing that all rentals should apply on the purchase price should said County purchase the same."

"That thereafter the Howard Cooper Corporation offered to the plaintiff herein to sell the above described personal property providing the County did not exercise its option to purchase the same from Howard Cooper Corporation; and on December 19, 1941 the Howard Cooper Corporation represented to the plaintiff, Don Guiles, that the said Boundary County did not intend to exercise its option, and thereupon the above mentioned note and mortgage were given by the plaintiff herein, but the Howard Cooper Corporation represented to the plaintiff that the Boundary County desired to use said Machinery for a short time, and it was agreed by the plaintiff and the Howard Cooper Corporation that Boundary County should continue to retain possession of the machinery and that the rental price of...