Homefinders v. Lawrence, No. 8655

• Court: United States State Supreme Court of Idaho
• Writing for the Court: SMITH; PORTER; KEETON
• Citation: 80 Idaho 543,335 P.2d 893
• Parties: HOMEFINDERS, a co-partnership consisting of E. E. Rutledge and E. N. Eichhorn, Plaintiff-Respondent, v. John R. LAWRENCE and Ida H. Lawrence, husband and wife, Defendants-Appellants.
• Docket Number: No. 8655
• Decision Date: 16 February 1959

Page 893

335 P.2d 893 80 Idaho 543 HOMEFINDERS, a co-partnership consisting of E. E. Rutledge and E. N. Eichhorn, Plaintiff-Respondent,
v.
John R. LAWRENCE and Ida H. Lawrence, husband and wife, Defendants-Appellants. No. 8655. Supreme Court of Idaho. Feb. 16, 1959.

[80 Idaho 544]

Page 894

W. A. Johnston, Boise, for appellants.

[80 Idaho 545] Fredricks & Roberts, Boise, for respondent.

SMITH, Justice.

Respondent partnership was licensed as a real estate broker pursuant to I.C., §§ 54-2028 and 54-2030. The broker's license was issued to E. E. Rutledge, the active partner, E. N. Eichhorn being inactive.

January 10, 1954, appellants, desirous of exchanging their acreage for a business property, orally employed respondent to locate such a property. During the latter part of January, 1954, respondent located an apartment property. Appellant and wife and the apartment owner and wife, each having inspected the property of the other,

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thereupon, February 4, 1954, signed a printed form of instrument filled in with typewritten and handwritten information (hereinafter sometimes referred to as the exchange contract), providing for the exchange of their respective properties. When [80 Idaho 546] signed, the contract did not contain the descriptions of the real and personal properties contemplated to be exchanged. Respondent's salesman, a licensed real estate broker and a notary public, present when the parties signed the contract, later added the descriptions of the realty on the reverse side of the contract, and attached to it a form of acknowledgment of the parties. The contract contemplated delivery of deeds of conveyance, bills of sale, and other instruments, and completion of title matters, to close the transaction within 30 days.

Appellant and the apartment owner, contemporaneously with the execution of the contract, each signed a printed form of rider, with the blanks thereof filled in, attached to and a part of the form of contract. The content of each rider is identical except for the respective sums stated. The one signed by appellant reads:

'I hereby ratify and confirm the employment of Homefinders Real Estate, real estate broker, to procure a purchaser for my property above described and in consideration of services performed by said broker in negotiating and bringing about the foregoing sale, hereby agree to pay said broker forthwith a commission of $750.00 ($200.00 of which is hereinabove receipted for as earnest money deposited) to be paid in mo. installments.

'John R. Lawrence (Seal)'

Appellant and wife on the same date, February 4th, executed and delivered to respondent their promissory note for $200 payable in 30 days, as the earnest money referred to in the rider.

The following Monday, February 8th, appellant and wife refused to complete the exchange transaction, although the apartment owner was willing, ready and able to do so. Appellant and wife gave as their reason for not proceeding with the exchange, that they felt it was beyond their financial means, and they refused to pay respondent broker's commission. Respondent then commenced this action seeking to recover on its first cause of action $550 as the balance of the broker's commission and interest thereon (and other sums not involved on this appeal), and on its second cause of action $200 on the promissory note together with interest and attorneys fees, allegedly owing by appellants.

The trial court sitting without a jury, at the conclusion of a trial, made its findings of fact and conclusions of law; the court thereupon entered judgment in respondent's favor against appellants for the aforesaid principal sums on both causes of action and attorneys fees on the second cause of action, together with costs. Appellants have appealed from such judgment.

We group appellants' many assignments of error into five main categories, the treatment of which we deem requisite for disposition of this appeal.

[80 Idaho 547] First, appellants contend that respondent as a partnership has not legal capacity to sue. It is not necessary to decide this question since it appears that appellants did not timely raise it.

Appellants contend that their general demurrer raised the objection that respondent has not legal capacity to sue. Such objection is a ground of special demurrer, enumerated in I.C. § 5-607. If not appearing on the face of the complaint, the objection may be taken by answer, I.C., § 5-610. If no objection be taken either by demurrer or answer, 'the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action', I.C., § 5-611. These provisions are contained in California's statute, Cal.C.C.P. §§ 430, 433 and 434.

This identical question was involved in Ginsberg Tile Co. v. Faraone, Cal.App., 274 P. 549, 550, wherein the partnership

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of Ginsberg Tile Co. alleged that at all times mentioned it was a co-partnership, composed of certain named individuals, as has respondent herein. In the California case, the defect that plaintiff had not legal capacity to sue was raised by special demurrer; therein the Court said, '* * * it is settled that, if plaintiffs do sue in their partnership name, the defendants must interpose their objections at the very outset or they waive it.' See also Valley Lumber & Mfg. Co. v. Driessel, 13 Idaho 662, 93 P. 765, 15 L.R.A., N.S., 299, 13 Ann.Cas. 63; Agricultural Extension Club v. M. Hirsch & Son, 39 Cal.App. 433, 179 P. 430; Danziger v. Peebler, 88 Cal.App.2d 307, 198 P.2d 719; Case v. Kadota Fig Ass'n of Producers, Cal.App., 207 P.2d 86; Thelen v. Thelen, 32 Idaho 755, 188 P. 40; Anthes v. Anthes, 21 Idaho 305, 121 P. 553. In Lobb v. Brown, Cal.App., 276 P. 583, 585, it is stated, 'When the want of capacity is apparent from the face of the complaint, and objection thereto is not taken by demurrer, it is deemed waived.'

In Valley Lumber & Mfg. Co. v. Driessel, supra, the contention of respondent that the question of appellant's legal capacity to sue is raised by general demurrer, is answered in this language:

'* * * the only ground stated in the demurrer was that the complaint did not state facts sufficient to constitute a cause of action. It therefore did not raise the question of the capacity of the respondent to sue,' [13 Idaho...