Huggins v. Green Top Dairy Farms

• Decision Date: 12 July 1954
• Docket Number: No. 8007,8007
• Citation: 273 P.2d 399,75 Idaho 436
• Parties: HUGGINS et al. v. GREEN TOP DAIRY FARMS, Inc. et al.
• Court: Idaho Supreme Court

Page 399

273 P.2d 399

75 Idaho 436

HUGGINS et al. v. GREEN TOP DAIRY FARMS, Inc. et al.

No. 8007.

Supreme Court of Idaho.

July 12, 1954.

Clements & Clements, Lewiston, for appellant Green Top Dairy Farms, inc.

Thomas A. Madden, Lewiston, and C. Orno Shoemaker, Clarkston, Wash., for appellant J. R. Standley, receiver.

J. H. Felton and William J. Jones, Lewiston, for respondents John D. Huggins and others.

Wynne M. Blake, Lewiston, for Carl Malmgren, special receiver.

Russell S. Randall, Lewiston, for First Security Bank of Idaho, N. A., and State Bank of Clarkston.

Cox, Ware & Stellmon, Lewiston, for Monroe Dairy Mach. Co.

Earle W. Morgan, Lewiston, for Mary L. Grant.

Langroise, Clark & Sullivan, W. H. Langroise and W. E. Sullivan, Boise, for respondents John D. Huggins and others on rehearing.

KEETON, Justice.

After decision was released in this case on March 8, 1954, on petition of respondents (plaintiffs) a rehearing was granted. Additional briefs were filed and oral argument heard. The issues presented have been by this Court re-examined. While parts of this opinion are repetition of what was formerly said, we have withdrawn the original opinion and substituted this opinion on rehearing.

On January 19, 1952, plaintiffs, respondents here, filed a complaint against the Green Top Dairy Farms, Inc., a corporation and Monroe Dairy Machinery, Inc., a corporation, asking for certain relief and for the appointment of a receiver for the Green Top Dairy Farms, Inc., and at the same time filed an affidavit stating the reasons why plaintiffs claimed a receiver should be appointed.

On this ex parte application the court, Honorable Harry J. Hanley, Judge, on the same day, without notice, appointed Carl Malmgren receiver. No undertaking on the part of plaintiffs to indemnify defendant from a wrongful, malicious appointment, or an appointment without sufficient cause, was required or given. Sec. 8-603 I.C.

The Green Top Dairy Farms, Inc., appellant here, will, except where otherwise indicated, be referred to as defendant.

In the order appointing receiver, his bond was fixed in the sum of $5,000 and later increased to $10,000. The value of the property of defendant, for which a receiver was appointed, was far in excess of $100,000. Thereafter numerous proceedings were had, an affirmative defense and cross complaint filed, claims presented, charges and counter charges made, a general receiver in another action, J. R. Standley, appointed.

Certain issues connected with the subject matter were formerly before this Court in Abbott v. Grant, 73 Idaho 77, 245 P.2d 797; Huggins v. Green Top Dairy Farms, Inc., 74 Idaho 266, 260 P.2d 407.

The court heard the matter on issues joined, and on January 12, 1953, Honorable Albert J. Graf, presiding Judge, entered findings of fact, conclusion of law and decree favorable to plaintiffs, respondents here.

In its cross complaint, Green Top Dairy Farms, Inc. prayed for damages by return of the payments made on the contract hereinafter referred to; damages for alleged wrongful termination of the agreement by plaintiffs; damages for the wrongful appointment of a receiver, the sequestration of its personal property.

Mary L. Grant, one of the sellers named in the contract herein referred to, did not join as a party plaintiff, was thereafter joined as a party defendant, but the proceedings as to her were by consent of all parties dismissed.

The trial court among other things decreed that plaintiffs and Mary L. Grant are the owners of certain real estate described in the contract herein referred to; that the receiver Carl Malmgren be awarded $3,492 for his services; that his attorney, Wynne M. Blake, be awarded $500 as attorney fees for services for the receiver; that J. H. Felton and William J. Jones be awarded $4,000 as attorney fees. Further that plaintiffs have and recover from Green Top Dairy Farms the sum of $8,590.10, plus the amount allowed the receiver, and the attorneys, a total of $16,582.10, and costs in the sum of $95.75. The decree further dismissed the cross complaint of defendant and ordered the receiver to turn over to various parties named therein numerous pieces of property belonging to them. From the decree so entered the Green Top Dairy Farms, Inc. and J. R. Standley, receiver, appealed.

The material facts are not in dispute and if there is a conflict in the evidence on any material issue, we will view the evidence in the light most favorable to respondents.

The seven plaintiffs, together with defendant Mary L. Grant, are the heirs of Benjamin F. Huggins, Sr., deceased. In the fall of 1950 such heirs owned a 60% interest, and the estate of Benjamin F. Huggins, Sr., deceased, owned a 40% interest in the property and business known as the Huggins Dairy, which was a going dairy concern, located in the city of Lewiston.

On October 31, 1950, the heirs, together with Harley L. Grant, administrator of the estate of Benjamin F. Huggins, Sr., deceased, entered into a conditional sales agreement covering such property with defendant. This sales contract is the basis of this suit.

By the terms of the contract, plaintiffs agreed to sell and defendant agreed to buy the real and personal property of the Huggins Dairy. For such real and personal property, excluding some stock in trade and merchandise kept for sale, payment for which was otherwise provided for, defendant agreed to pay $136,250. The contract, carefully prepared, specified in detail the rights and liabilities of the parties thereunder.

$3,257.62 of the purchase price was to be paid by the assumption by the buyer of certain indebtedness outstanding, owed by the sellers. With the down payment and the assumption of these items, there was left a balance unpaid on the contract of $123,592.38. This balance was to be paid in various installments as specified in the contract, and among other payments provided that $9,999 of the purchase price was to be paid as follows: $909 on the 15th of February, 1951, and $909 on the 15th day of each and every month thereafter through the year 1951; and $835 on the 15th day of January, 1952.

The estate of Benjamin F. Huggins, Sr., deceased, the owner of a 40% interest in the property sold was in process of probate and it was necessary to institute proceedings in the probate court to get confirmation of the sale. The necessary proceedings were had and the sale confirmed.

The contract provides:

'In the event said sale is confirmed to Green Top [defendant] Grant [administrator of the estate of Benjamin F. Huggins, Sr., deceased] shall execute and deliver to Green Top a deed and bill of sale to estate's interest in said property required hereby. Simultaneously therewith, heirs [eight in number] shall execute and deliver a deed and bill of sale to their interest in said property. Also simultaneously therewith Green Top shall execute and deliver to Grant, and to the heirs, the instruments herein required, namely exhibits B, C, D & E.'

The administrator's deed and bill of sale referred to in this paragraph, after confirmation of the sale, were neither executed nor delivered.

The exhibits referred to were: 'B' a promissory note for $123,592.38, being the balance due on the contract after down payment and other credits; 'C' real estate mortgage; 'D' chattel mortgage; 'E' chattel mortgage. The real estate and chattel mortgages given to secure the promissory note covered the real and personal property described in the contract of sale. All of these exhibits were executed by defendant and tendered for delivery to plaintiffs on January 12, before the defendant took possession of the property, and again on January 19, and tender of delivery was kept good and available throughout the period of defendant's possession, and up to the time of the commencement of the action. The deed and bill of sale to be executed and delivered by the heirs, respondents here, conveying the property to defendant, were executed by the heirs but never delivered. There was no such delivery ever tendered or offered pursuant to the terms of the contract. If plaintiffs had performed the contract as required by its terms, the contract would have been superseded for the most part by the deed, bill of sale, note and mortgages.

Defendant took possession of the business and property so sold on January 15, 1951, and continued in possession until the receiver was appointed on January 19, 1952.

On the 16th of January, 1952, plaintiffs gave defendant a written notice claiming that it was in default on the contract in the following particulars: payment of $909 and interest due November 15, 1951; payment of $909 and interest due December 15, 1951; payment of $909 and interest due January 15, 1952; also claimed failure to pay $8,590.10 claimed due under paragraph 12 of the contract, covering merchandise and other items. Plaintiffs by this notice also claimed taxes defendant should have paid were in default in the sum of $453.52; that certain personal property had been sold and the total amount by said notice claimed due was $12,134.02, plus the taxes. In default of paying this amount, defendant was advised by said notice that plaintiffs would demand possession of the property covered by the contract on the 19th day of January, 1952, at 9:30 a. m. According to the contract the January installment was fixed at $835 and not $909 as stated in the notice.

Within the time specified in the notice, defendant tendered the amount claimed due by reason of default in installment payments, offered to pay the taxes, and advised plaintiffs in writing that the amount claimed as a balance for stock in trade and personal property purchased and sold, and other items, was an unliquidated amount, subject to divers offsets, and would in substance, be paid when the amount could be determined as provided for in the contract.

At the time specified in the notice, January 19, 1952, at 9:30 a. m., one of the plaintiffs, accompanied by his...