Harshbarger v. Eby

• Decision Date: 25 March 1916
• Parties: MILLER M. HARSHBARGER, Respondent, v. J. R. EBY and ELIZA R. EBY, Appellants
• Court: Idaho Supreme Court

156 P. 619

28 Idaho 753

MILLER M. HARSHBARGER, Respondent, v. J. R. EBY and ELIZA R. EBY, Appellants

Supreme Court of Idaho

March 25, 1916

PLEADINGS-GROUNDS OF DEFENSE-ELECTION-INCONSISTENT ALLEGATIONS-CONSTRUED AGAINST PARTY ALLEGING-PROMISSORY NOTE-CONSIDERATION-PROPERTY-GOODWILL-CONTRACT - CONSIDERATION SHOWN-ORAL EVIDENCE TO VARY INADMISSIBLE-INSTRUCTIONS TO JURY.

1. Held, that it was the duty of the trial court, under the pleadings in this case, either to have granted respondent's motion to strike out all of paragraph 3 on page 3 of appellants' first alleged further answer and defense and all of paragraph 3, beginning at the bottom of page 5 of their second alleged further answer and defense contained in their amended answer, or to have required them to elect upon which defense they intended to rely; and that the evidence upon the trial should have been confined to the defense upon which they elected to stand.

2. Under sec. 4187, Rev. Codes, a defendant may set forth by answer as many defenses and counterclaims as he may have, and the same may, to a certain extent, be inconsistent with each other, but they must not be so inconsistent that the proof of one defense would necessarily disprove the other. And where the allegations of an amended answer are inconsistent, the defendant will be bound by those against him.

3. Inadequacy of consideration is no defense to an action on a promissory note, unless there was fraud also on the part of the promisee. (Caldwell v. Ruddy, 2 Idaho 1, 1 P. 339, cited and followed.)

4. Held, that the goodwill of a business is a species of property subject to sale, but the vendor who sells the goodwill of his business guarantees nothing, for, in the nature of things, he can give no assurance that the patronage of the place will continue.

5. Where it appears that the value of the business, the property and the goodwill has been agreed upon by the contracting parties and stipulated in a written contract, and no other consideration than that fixed in the contract is shown; and where it further appears that the written contract was admitted to be the contract entered into between the parties in which the consideration for such business, property and goodwill as a whole was fixed, the trial court did not err in striking out the testimony of appellant attempting to fix the value of each article of personal property and the real estate, separately.

6. Held, that the court did not err in denying appellants' offer of certain proof.

7. In this case the amended answer being insufficient as a denial of the allegations in the complaint, and the court having instructed the jury to find for respondent, held, that the instruction was right, as no evidence was required on the part of respondent to establish appellants' indebtedness on the note, and there was sufficient evidence to establish the attorney's fee.

[As to oral evidence to vary written contract, see note in 11 Am.St 393]

APPEAL from the District Court of the Ninth Judicial District, in and for Fremont County. Hon. James G. Gwinn, Judge.

Action to recover on promissory note. Judgment for plaintiff. Affirmed.

Judgment of the trial court affirmed and costs awarded to respondent.

Chas R Moon, for Appellant.

The consideration named in a written instrument may be shown by parol evidence to be different from that expressed. (3 Jones on Evidence, art. 469; Van Lehn v. Morse, 16 Wash. 219, 47 P. 435; Don Yook v. Washington Mill. Co., 16 Wash. 459, 47 P. 964; Welch v. Brown, 46 Colo. 129, 103 P. 296; Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am. Dec. 378; Herbert v. Ford, 29 Me. 546; Folsom v. Mussey, 8 Greenl. (8 Me.) 400, 23 Am. Dec. 522.)

It is right and proper to show what was the actual value of the property at the time of the sale, as tending to show what was the actual consideration for each separate class of property sold, to wit, the real and personal property and the goodwill of the business. (Wheeler v. F. A. Buck & Co., 23 Wash. 679, 63 P. 566; Barney v. Fuller, 133 N.Y. 605, 30 N.E. 1007; Kimball v. Locke, 31 Vt. 683; Bradbury v. Dwight, 3 Met. (Mass.) 31; Swain v. Cheney, 41 N.H. 232; Weidner v. Phillips, 114 N.Y. 458, 21 N.E. 1011; Miller v. Livingston, 22 Utah 174, 61 P. 569; Warwick v. Hitchings, 50 Wash. 140, 96 P. 960; McCowan v. Northeastern Siberian Co., 41 Wash. 675, 84 P. 614.)

Soule & Soule and A. H. McConnell, for Respondents.

Where a plea of entire want of consideration is made, it is not supported by proof of a partial want or of a failure of consideration. (Wilson v. Town of Monticello, 85 Ind. 10; Wheelock v. Barney, 27 Ind. 462; Shirk v. Neible, 156 Ind. 66, 83 Am. St. 150, 59 N.E. 281-284; Crouch v. Davis' Exr., 23 Gratt. (Va.) 62, 75.)

These two defenses were so inconsistent with each other that the proof of one would necessarily disprove the other, and under the rule in this state such defenses cannot be interposed. (Murphy v. Russell & Co., 8 Idaho 133, 67 P. 421.)

"Where the allegations in an answer are inconsistent with each other the defendant is bound by those against him." (Mitchell v. Ripley, 5 Kan. App. 818, 49 P. 153; Bierer v. Fretz, 32 Kan. 329, 4 P. 284; Wharton on Evidence, sec. 1110; Paige v. Willet, 38 N.Y. 28; Myrick v. Bill, 3 Dak. 284, 17 N.W. 268-270.)

Where the compensation for services rendered, or the price of property sold, or material furnished, is stipulated by express agreement, no evidence of value is admissible. (9 Cyc. 567.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This action was commenced in the district court of the ninth judicial district in and for Fremont county by respondent to recover on a promissory note in the sum of $ 2,500, together with interest and attorney's fee.

Appellant, prior to the date of the execution and delivery of this note, resided at Elko, Nevada, where he was following his profession as a physician and surgeon. Respondent, who was also a physician and surgeon, following his profession at St. Anthony, Idaho, had authorized the publication of a notice in "The Journal of the American Medical Association" that he desired to sell his business, briefly describing the same. The notice having come to his attention, appellant J. R. Eby went to St. Anthony for the purpose of investigating, and, if satisfied with the result of his investigation, purchasing respondent's business. The parties met at St. Anthony and as a result of their negotiations a sixty or ninety days' option was given by respondent to appellant for the purchase of the former's business and certain real and personal property, and the goodwill. Prior to the expiration of the option, appellant concluded to exercise his right thereunder, and made the purchase. When the transaction was concluded, appellant paid respondent $ 3,000, and, with his wife, executed and delivered to respondent a note for $ 2,500 in full payment of the purchase price for the business, the goodwill and the property.

An instrument designated a contract of sale, which was executed by the parties, and which appears in appellants' amended answer, sets out in full and describes the real and personal property purchased and the total sum to be paid for the business, the goodwill and the property enumerated, being $ 5,500. Included in this contract of sale is a further agreement between the parties that respondent would cease to engage in the practice of his profession in St. Anthony and Fremont county for a number of years, which provision respondent complied with by moving away from the state.

When the note fell due, respondent commenced this action for the purpose of enforcing payment, and alleged in his complaint, inter alia, that the note was due; that it provided for a reasonable attorney's fee; and that $ 500 was a reasonable attorney's fee. Respondent prayed for judgment for the amount due on the note, together with interest and attorney's fee. To this complaint appellants filed an answer, to which respondent demurred, and also moved to strike out certain affirmative allegations contained therein. The demurrer and motions were sustained. Thereafter appellants filed their amended answer, in which they admit the execution and delivery of the note, but affirmatively allege that it was executed and delivered to respondent without a valuable consideration and that they received no valuable consideration therefor; also admitting that they have not paid the note, but denying that $ 500 or any other sum is a reasonable attorney's fee. They further allege as a conclusion, in avoidance of the note, that they were induced to sign and deliver it to respondent through his fraud and misrepresentations. They undertook to allege in their amended answer, as a further second and separate defense, fraud of respondent in procuring the note in suit, and as a further third and separate defense, a breach of warranty on the part of respondent.

Respondent filed a motion to strike from appellants' amended answer the allegations of fraud and of breach of warranty, for the reason that these allegations were inconsistent with the allegation of want of consideration. He also filed a demurrer to each of the separately alleged defenses, on the ground that neither of them stated facts sufficient to constitute a ground of defense. The motion to strike was denied and the demurrer was overruled.

Respondent then sought to have appellants elect upon which of the defenses they intended to rely, but from an examination of the record we are unable to determine definitely the final ruling of the court on this latter motion. It was the duty of the court, under the pleadings in this case, either to have granted respondent's motion to strike or to have required appellants to elect upon which defense they intended...