Harrison v. Russell & Co.

• Decision Date: 04 November 1909
• Citation: 17 Idaho 196,105 P. 48
• Parties: J. T. HARRISON, MARGARET A. HARRISON and W. H. HARRISON, Appellants, v. RUSSELL AND COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

105 P. 48

17 Idaho 196

J. T. HARRISON, MARGARET A. HARRISON and W. H. HARRISON, Appellants, v. RUSSELL AND COMPANY, a Corporation, Respondent

Supreme Court of Idaho

November 4, 1909

BURDEN OF PROOF-RIGHT TO OPEN AND CLOSE-ADMISSIBILITY OF EVIDENCE-AMENDING COMPLAINT.

1. In an action brought to cancel promissory notes, in which the plaintiff alleges that such notes have been paid by a return of the property for which they were given, in accordance with the contract of sale, and to recover partial payments made thereon, the affirmative is with the plaintiff, and the plaintiff should have the right to open and close the evidence and argument, and it is error for the court, over the objection of the plaintiff, to deny the plaintiff such right.

2. Rev Codes, sec. 4928, provides a remedy by which one person can require another to come into court for the purpose of having determined an adverse claim which the latter may claim to hold against the former for money or property, upon an alleged obligation; and in such action the plaintiff must prove the allegations of his complaint and has the right to open and close the case, as the action is not one to require the defendant to bring suit upon his pretended claim or obligation, but is purely a statutory action in which the adverse claim may be adjudicated and determined.

3. Where the issue in a case is the contract of purchase of machinery and a warranty given therewith, it is error to exclude evidence tending to show such contract and the character of the work done by the machinery sold, and the efforts on the part of the seller to make the machinery work in accordance with a warranty, and the acts of the parties with reference to a return and exchange of such machinery and the final cancellation and rescission of the contract of sale.

4. In allowing amendments to pleadings, the court is clothed with great discretionary power, but where it appears that the amendment offered is made for the purpose of conforming to the proof and does not present any new cause of action or issue, and the opposing party has not been misled or deprived of introducing any evidence which he might desire to offer in consequence of the amendment, it is error for the court to disallow such amendment.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

An action for surrender and cancellation of certain promissory notes. Judgment for defendants. Plaintiff appeals. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellants.

S. S. Denning, for Appellants.

Plea of payment is an affirmative defense and must be pleaded and established by the defendant. (2 Green. on Ev., sec. 516; 18 Am. & Eng. Ency. of Law, 253, 1st ed., and note 1.)

Plaintiffs ought to have been permitted to show all the facts surrounding the making of the contract. (Lillienthal & Co. v. Anderson, 1 Idaho 673; Fisher v. Board, 4 Idaho 381, 39 P. 552; Rice v. Bank, 5 Idaho 39, 47 P. 856; Idaho Mercantile Co. v. Kalanquin, 8 Idaho 101 (on page 106), 66 P. 933; Morrison v. Regan, 8 Idaho 291, 67 P. 955; Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 P. 768.) The court erred in taking from the jury all the evidence given by the plaintiff, Harrison, in regard to the terms of the contract, the time in which the notice of the defect of the machine was given, the acts, conversations and admissions of the defendant's agents after the giving of the notice, all that was said and done in regard to the exchange of the machines and the taking back and sale of the same, as the same was stare decisis under the rule laid down in Harrison v. Russell Co., 12 Idaho 624, 87 P. 784. (Lindsay v. People, 1 Idaho 438; Palmer v. Utah etc. Ry. Co., 2 Idaho 382, 16 P. 553; Hall v. Blackman, 9 Idaho 555, 75 P. 608; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363.)

Where there is a conflict between the pleading and the proof, if it did not mislead the defendant to its prejudice plaintiff is entitled to amend. (Hawkins v. Pocatello Water Co., 3 Idaho 766, 35 P. 711; Aulbach v. Dahler, 4 Idaho 654, 43 P. 322; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; Lewis v. Utah Construction Co., 10 Idaho 214, 77 P. 336; Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Kindall v. Lincoln Hdw. Co., 10 Idaho 13, 76 P. 992; Murphy v. Russell Co., 8 Idaho 133, 67 P. 421; Dunbar v. Griffiths, 14 Idaho 120, 93 P. 654; Western Loan & Savings Co. v. Kendrick State Bank, 13 Idaho 331, 336, 90 P. 112.)

Forney & Moore, for Respondent.

The question involved in this case is purely one of fact. The action was brought under sec. 4928, Rev. Stat. 1887, as construed in the case of Ada County v. Bullen Bridge Co., 5 Idaho 188, 95 Am. St. 180, 47 P. 818. No question of warranty was involved. The defendants brought the action on the promissory note as required by the statute, and the matter to be determined and the entire controversy was, did plaintiffs deliver the machine to Russell & Co. and was the said machine accepted by the said Russell & Co.; this embraced the whole contention.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This case was before this court upon a former appeal from a judgment in favor of respondent, and is reported in the 12th Idaho, commencing at page 624. Upon the reversal the cause came on for trial upon the same pleadings and issues upon which it was first tried, and upon such retrial the plaintiffs demanded the opening and close in the presentation of the evidence and the argument. This was denied and an exception taken to the ruling of the court, and this ruling is assigned as error. It appears from the record that during the discussion between counsel and court as to who had the right to open and close, the court among other things remarked: "That matter was before the supreme court; nothing said about the procedure being wrong; they say that was the very proceeding that was had."

A reference to the former opinion in this case discloses the fact that this question was not presented to this court or discussed or passed upon. An examination of the transcript upon that appeal discloses the fact that "it is agreed that the defendant take the affirmative of the case." The right, therefore, of the defendant to open and close, under the issues, was not presented to this court or passed upon. In the complaint, after alleging the issue of the notes and that the notes have been fully paid and satisfied, the plaintiffs further allege: "That the purpose for which the said three notes were given was to have been in part payment for a certain threshing-machine, and that the defendant herein warranted that the said machine would do good and satisfactory work in threshing, and if it did not do so, that the plaintiffs herein might return the machine and that the defendants would return the said notes heretofore set forth, together with all payments which the plaintiffs had made thereunder on the said notes, and that by reason of the said agreement the plaintiffs herein on, to wit, the 4th day of December, 1900, did pay the sum of fifty ($ 50.00) dollars, and on the 7th day of May, 1901, did pay the sum of two hundred ($ 200.00) dollars; that on, to wit, the day of , 190 , the plaintiffs herein returned to the defendant corporation herein the said machine and the defendant received the same in accordance with the terms of the contract."

The defendant in its answer denies that said notes have been paid, and denies that it warranted the machine, or that it was agreed that if it did not do good work that the plaintiffs might return the machine and that the defendant would return the notes and the payments made on said notes; or that the defendant by reason of the agreement paid the plaintiffs the sums named in the complaint, and then pleads the contract of warranty, which it is claimed was given to the plaintiffs. These allegations, it seems to us, impose upon plaintiffs the burden of proof to the effect that the notes were paid and discharged in the manner alleged in the complaint, and puts in issue the contract alleged in the complaint with reference to the return of the money paid upon said notes. In this state of the pleadings, it was clearly the right of the plaintiff to have the opening and the closing. The burden was upon the plaintiff, under this issue, to prove the allegations of the complaint. Sec. 4383, Rev. Codes, provides:

"When the jury has been sworn, the trial must proceed in the following order unless the judge for special reasons otherwise directs: 1. The plaintiff, after stating the issue and his case, must produce the evidence on his part. 2. The defendant may then open his defense and offer his evidence in support thereof."

Then follows the provision with reference to rebutting evidence and the argument of counsel. Under this statute it is the right of the plaintiff in all cases to have the opening and the close, unless there be some peculiar fact or reason why this right should be denied the plaintiff; and upon such reason the judge directs such procedure.

There does not appear under the issues of this case any reason why the plaintiffs should be denied this statutory right. The complaint contained affirmative allegations which were denied by the answer, and which it was incumbent upon the plaintiffs to prove in order to recover.

There seems to have been some doubt in the mind of the court, as well as counsel, as to the nature and character of this action. The court seems to have been of the opinion that the action was one brought for the purpose of compelling the defendant to bring suit upon promissory notes which it was alleged the defendant held against the plaintiffs as makers....