Hawkins v. Smith

• Decision Date: 17 April 1922
• Citation: 205 P. 188,35 Idaho 349
• Parties: S. J. HAWKINS, Appellant, v. C. H. SMITH, Respondent
• Court: Idaho Supreme Court

205 P. 188

35 Idaho 349

S. J. HAWKINS, Appellant, v. C. H. SMITH, Respondent

Supreme Court of Idaho

April 17, 1922

ASSIGNMENT OF ERROR-INSUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT OR JUDGMENT-CONTRACT TO SELL PERSONAL PROPERTY-TIME OF DELIVERY-TIME OF THE ESSENCE OF CONTRACT-BREACH OF CONTRACT-WAIVER OF.

1. Where appellant fails in his brief to point out wherein the evidence is insufficient to support the verdict or judgment the question of the insufficiency of the evidence will not be considered.

2. Time is of the essence of a contract of sale where the contract provides for delivery between certain dates by the vendor of perishable farm products of a fluctuating value to cars to be provided by the vendee, and it is contemplated that such delivery shall be made direct from the field as the crop is harvested.

3. Waiver is the voluntary abandonment or relinquishment by a party of some right or advantage, and does not necessarily depend upon any new or additional consideration. But in such a case it must appear that the adversary party has acted in reliance upon such waiver and altered his position so that he will be prejudiced, in order to prevent the party not in default from treating the contract as discharged or from declaring the contract discharged.

APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.

Action for damages for breach of contract. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Lee &amp Thomas, for Appellant.

Where after the expiration of the time limit for performance, both parties have treated a contract as still in force, neither party may rescind without setting a new limit, and giving the other party a reasonable opportunity to perform. (Kessler v. Pruitt, 14 Idaho 175, 93 P. 965.)

"Where time is agreed to be the essence of a contract, but both parties have by their course of action waived a prompt performance, or where one party has permitted the other for a long time to become slack in his performance, he cannot suddenly change his course of action after thus lulling the other into a sense of security, and declare a forfeiture without notice first that, if the other does not promptly perform, the forfeiture will be declared." (Bowers v. Bennett, 30 Idaho 188, 196, 164 P. 93; 9 Cyc. 608D.)

S. T. Lowe, for Respondent, files no brief.

BUDGE, J. Rice, C. J., and McCarthy and Dunn, JJ., concur.

OPINION

BUDGE, J.

This action was brought by appellant to recover damages for an alleged breach of contract for the sale of potatoes.

From the record it appears that on October 13, 1916, appellant by his agent Polley entered into a contract with respondent in which the latter, in consideration of $ 50 paid to him, agreed to sell to appellant and to deliver from the field to cars at Beetville loading station, Cassia county, three carloads of potatoes between October 13th and 20th, at an agreed price of $ 1.40 per hundred pounds; that respondent began to dig his potatoes on October 17th and on that day five wagons were loaded and ready for delivery on the morning of the 18th, which, due to the failure of appellant to furnish cars, with the balance of the crop as the digging and hauling from the field progressed, were unloaded and covered with hay in an effort to keep them from freezing, but that some 200 sacks of potatoes were damaged by freezing; that respondent kept in constant communication with Polley to learn when cars would be available not only up to October 20th, but for four or five days thereafter, but no cars were provided by appellant at the loading station prior to October 25th or 26th, and at said time respondent notified Polley that the contract had been broken and he would not make delivery.

In his complaint, appellant prayed for damages in the sum of $ 50 for moneys paid and $ 630 for the difference between the contract price and the price appellant claimed he was forced to pay in a rising market to secure potatoes in lieu of those engaged from respondent to fill orders already contracted, while in respondent's answer and cross-complaint he set up appellant's failure to furnish the three cars as agreed, his readiness and ability to deliver at all times between the 13th and 20th, and claimed $ 462 for damages suffered through loss of potatoes frozen while waiting an opportunity to deliver.

The cause was tried to the court and a jury. Verdict was returned against appellant upon his complaint and in favor of respondent upon his cross-complaint, in the sum of $ 50 and costs. From the judgment entered thereon, plaintiff has appealed and assigns as error the action of the court in entering judgment against him for the reason that the verdict is against the law; that the evidence is insufficient to justify or support the verdict or judgment; that the verdict is against the law, and that the uncontradicted evidence and the law applicable thereto compel a judgment in appellant's favor.

Appellant has failed to point out wherein the evidence is insufficient, and this question will not be considered. (State v. Maguire, 31 Idaho 24, 169 P. 175; Citizens' Right of Way Co., Ltd., v. Ayers, 32 Idaho 206, 179 P. 954; Weber v. Pend d'Oreille Min. & R. Co., ante, p. 1, 203 P. 891; Hurt v. Monumental Mercury Min. Co., ante, p. 295, 206 P. 184.)

In his brief appellant states that "There is but one point in this case, 'Did or did not respondent by his conduct waive his right to rescind the contract on October 25th or 26th?'"

It appears that res...