Hansen v. Haley

• Citation: 11 Idaho 278,81 P. 935
• Parties: HANSEN v. HALEY
• Decision Date: 14 July 1905
• Court: United States State Supreme Court of Idaho

81 P. 935

11 Idaho 278

HANSEN v. HALEY

Supreme Court of Idaho

July 14, 1905

A JUDGMENT RENDERED ON THE VERDICT OF A JURY FINAL WHEN-INSTRUCTIONS TO THE JURY-EXCEPTIONS TO INSTRUCTIONS.

1. Where it is shown that a material and substantial conflict in the evidence occurs on the trial, the question or preponderance of evidence does not enter into the determination of the appeal in this court; the jury being the judges of the evidence and the weight to be given to it, the verdict and the judgment therein will be sustained.

2. Where the court instructs the jury on all the material issues involved as presented by the pleadings, and disclosed by the evidence, it is not error to refuse a request of either plaintiff or defendant unless it is shown that the instructions, or some portions of them, are erroneous.

(Syllabus by the court.)

APPEAL from the District Court of Cassia County. Honorable Lyttleton Price, Judge.

Judgment for plaintiff, from which defendants appealed. Judgment affirmed.

Judgment sustained, with costs to respondent.

Henderson Pierce, Critchlow & Barrette and A. Derbyshire, for Appellants.

It is a plain and elementary rule that parol proof cannot be given to vary or change the terms of a contract made in writing and deliberately entered into. The rule is equally well settled that where the contract is ambiguous as to the subject matter to which it applies, that proof of the surrounding circumstances as they exist at the time the contract was made may be given to the court or jury, and if, with such proof the contract upon its face, and according to its terms, can be readily ascertained and determined from its language, that no other or further proof is permitted to vary or change its meaning. (Browne on Parol Evidence, 116 et seq., and notes; 1 Greenleaf on Evidence, 16th ed., 406-411, secs. 277-288; 2 Am. & Eng. Ency. of Law, 291, 292, and note 1 on p. 292; Altschul v. San Francisco Assn., 43 Cal. 172; Broom's Legal Maxims, 8th ed., pp. 608-616.)

Hawley Puckett & Hawley, J. C. Rogers and K. I. Perky, for Respondent, cite no authorities in their brief.

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concurring.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.--

The plaintiff, who is respondent here, commenced his action in the district court of Cassia county, alleging that on the twenty-first day of December, 1903, he was the owner, in possession and entitled to the possession, of the following stock cattle of the value of $ 1,500, to wit: Sixty head in the aggregate of cows and heifers branded with the figure "2" on the left hip, situated on Raft river, Cassia county, Idaho. That said cattle were sold and delivered to plaintiff on or about the fourteenth day of December, 1903 by J. M. Pierce, who was at the time of such sale the owner and in possession, and entitled to the possession, of said cattle. That prior to the time of said sale and delivery, said J. M. Pierce, for the purpose of securing his certain promissory note made to the defendants, Haley & Saunders, of date December 9, 1902, payable on or before December 9, 1903, for the sum of $ 12,368.70, and bearing interest at the rate of eight per cent per annum from maturity until paid, made to defendants, Haley & Saunders, his certain chattel mortgage of even date with said note, upon a large band of sheep, to wit, three thousand four hundred and seventy-four head, and one hundred and fifty head of stock cattle, which said stock cattle included the sixty head herein first described as the cattle sold to plaintiff by said J. M. Pierce. That on July 10, 1903, said J. M. Pierce paid on said promissory note and mortgage the sum of $ 1,000, and afterward, to wit, on the ninth day of October, 1903, said J. M. Pierce paid the whole balance on said note and mortgage except the sum of $ 179 by the sale and delivery to them of said band of mortgaged sheep and the agreed application of the proceeds thereof to the payments of said promissory note and mortgage indebtedness, and that afterward, on or about the tenth day of December, 1903, at Salt Lake City said J. M. Pierce made due tender of said sum and residue of said note and mortgage indebtedness to defendants, Haley & Saunders, in lawful money, which said defendants refused to accept. That said tender discharged said defendants', Haley & Saunders', lien of said mortgage upon the sixty head of stock cattle hereinbefore described, but notwithstanding said payments and said tender, defendants, Haley & Saunders, failed and refused to surrender to said J. M. Pierce said note and mortgage or in any manner to cancel the same, and after said payments and said tender aforesaid had been made proceeded summarily to foreclose said mortgage without action in court or judicial proceeding of any sort and by and with the aid and assistance of the defendant, A. Lounsbury, the then duly elected, qualified and acting sheriff of Cassia county, said Haley & Saunders, together with the defendant, A. Lounsbury, sheriff as aforesaid, at Raft river, Cassia county, did on or about December 21, 1903, and while plaintiff was in the rightful possession of said cattle seize, take over and carry away each and all of said cattle. That on the twenty-sixth day of December, 1903, plaintiff demanded possession and the return of said cattle of the defendants, and defendants failed and refused to return the same, or any part thereof, and defendants converted and disposed of the same to their own use to the damage of plaintiff in the sum of $ 1,500.

Plaintiff further avers that he has expended and incurred obligations and expended for attorney's fees, and has expended time and money of the value of $ 300 in pursuit of said property, which amount he claims as damages.

Prayer follows in harmony with the complaint. Defendants jointly answered the complaint, denying that on the twenty-first day of December, 1903, or at any time, plaintiff was the owner or entitled to the possession of the sixty head of stock cattle, or any part thereof, or that sixty head of cattle were then of the value of $ 1,500 or any other or greater value than $ 12 per head, or a total of $ 720. Deny that said cattle were sold or delivered to plaintiff on or about the fourteenth day of December, 1903, by said J. M. Pierce, and deny that said J. M. Pierce at said time was the owner of or entitled to the possession of said cattle.

Admit the execution of the note and mortgage on December 9, 1902 as alleged in the complaint. Admit the payment of $ 1,000 by said J. M. Pierce on the promissory note and mortgage.

Deny that on the ninth day of October, 1903, or at any other time, said J. M. Pierce paid the whole balance of said note and mortgage to defendants Haley & Saunders, or any other or greater sum than $ 7,608.76, which sum was paid upon said note by said J. M. Pierce to Haley & Saunders on the thirteenth day of October, 1903. Deny the sum of $ 179 was due on said note on the tenth day of December, 1903. Admit that on the tenth day of December, 1903, at Salt Lake, said J. M. Pierce made a tender of $ 165, and no more, to said Haley & Saunders, and that Haley & Saunders refused to accept the same, and then and there notified said Pierce that there was a large amount due upon said mortgage and note greatly in excess of said sum of $ 165. Deny that said tender discharged said mortgage of Haley & Saunders. Admit that Haley & Saunders refused to surrender to said Pierce the note and mortgage. Admit that defendants Haley & Saunders foreclosed the mortgage as alleged and that defendant A. Lounsbury is the sheriff of Cassia county as alleged. Admit the demand for the return of the cattle as alleged and refusal to return them.

As a separate defense, defendants Haley & Saunders aver the execution and delivery of the note of December 9, 1902, for $ 12,386.70, and the execution and delivery of the chattel mortgage of even date to secure the note on the band of sheep alleged to be three thousand three hundred and seventy-five and the payment by said J. M. Pierce to Haley & Saunders of $ 1,000 on the first day of July, 1903, in cash on said note. That on the fourteenth day of August, 1902, at Salt Lake, Utah, said J. M. Pierce made, executed and delivered to defendants Haley & Saunders, his promissory note for $ 3,361.50, payable twelve months after date, with interest at the rate of eight per cent per annum until paid, both before and after judgment, and that there was paid thereon on the fifth day of September, 1903, by said J. M. Pierce, the sum of $ 267. That on or about the ninth day of October, 1903, said Haley & Saunders purchased of said Pierce all of the sheep described in the chattel mortgage, together with the increase thereof, and said ninety-nine head of Cotswold rams, and all the property described in said chattel mortgage, except the one hundred and fifty head of stock cattle hereinbefore referred to for the agreed price of $ 11,017. That said property was delivered to Haley & Saunders by said Pierce at or near McCammon, on the thirteenth day of October, 1903, and that at the time of the purchase of said property and delivery thereof, it was agreed between said J. M. Pierce and said Haley & Saunders that the said unsecured note should be paid first out of said $ 11,017, and that then and there there was due upon said unsecured note the amount of $ 3,408.24. That said unsecured note was canceled and tendered to said J. M. Pierce, and that it was further agreed that the balance of the purchase price of said sheep, to wit, $ 7,608.76 should be indorsed upon said secured note, and that the same was pursuant to said agreement paid and indorsed on the note on the thirteenth day of October, 1903, and that it was further agreed between said...