Idaho Mercantile Co. v. Kalanquin

• Decision Date: 02 December 1901
• Citation: 8 Idaho 101,66 P. 933
• Parties: IDAHO MERCANTILE COMPANY v. KALANQUIN
• Court: Idaho Supreme Court

66 P. 933

8 Idaho 101

IDAHO MERCANTILE COMPANY v. KALANQUIN

Supreme Court of Idaho

December 2, 1901

LEADING QUESTIONS.-Section 6077 of the Revised Statutes of 1887 defines a leading, or suggestive, question as one which suggests to the witness the answer which the examining party desires.

CROSS-EXAMINATION.-Where material allegations of complaint are denied by the answer defendant may cross-examine plaintiff's witnesses to disprove such allegations.

CONTENTS OF WRITING.-Before the contents of a written bill of particulars can be given in evidence, its absence or loss must be accounted for.

VALUE OF GOODS SOLD AND DELIVERED.-The value of goods alleged to have been sold and delivered may be proved by any competent evidence, oral or written.

EVIDENCE.-The positive testimony of witnesses of equal credibility should have more weight than the testimony of those who "don't remember," or are not sure of their facts.

EVIDENCE.-In proving a contract, all of the facts and circumstances tending to prove it ought to be allowed in evidence.

MISLEADING INSTRUCTIONS.-It is error to give misleading instructions.

VERDICT.-Where there is no substantial conflict in the evidence, and it is clearly against the verdict, the judgment will be reversed.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Judgment set aside, and a new trial granted. Costs of this appeal awarded to appellant.

Charles L. Heitman and James Graham, for Appellant.

"A question which suggests to the witness the answer which the examining party desires is denominated a leading or suggestive question." (Idaho Rev. Stats., sec. 6077.) The denial of each allegation controverted must be specific. (Idaho Rev. Stats., sec. 4183.) "A failure to deny specifically each and every material allegation of a verified complaint admits the allegation not so denied." (Norris v. Glen, 1 Idaho 590; Lillienthal v Anderson, 1 Idaho 673.) That defendant specifically denies does not of itself make a specific denial. "The denial of indebtedness without a denial of the facts alleged in the complaint out of which such indebtedness arose or follows is a conclusion of law and raises no issue of fact." (Swanholm v. Reeser, 3 Idaho 476, 31 P. 804; Nelson v. Murray, 23 Cal. 338; Turner v. White, 73 Cal. 299, 14 P. 794.) The fourteenth assignment of error is that the court erred in refusing to give appellant's fourth instruction, which reads as follows: "The court instructs the jury as a matter of law that, when witnesses are otherwise equally credible, and their testimony entitled to equal weight, greater weight and credit should be given to those who swear affirmatively or positively to a fact, rather than to those who swear negatively or to a want of recollection." (Pool v. Devers, 30 Ala. 672; Blizzard v. Applegate, 61 Ind. 368.) A letter containing an offer, and evidence establishing the performance of the service stipulated for in the offer, proves a contract in writing. (Hooker v. Hyde, 61 Wis. 204, 21 N.W. 52.) The assent of both parties to a contract may be inferred from their conduct. (Phillip v. Gallant, 62 N.Y. 256; Smith v. Hughes, L. R. 6 Q. B. 597; 7 Am. & Eng. Ency. of Law, 2d ed., 129; Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925.) When a contract, which lacks mutuality in its inception, is subsequently corrected, in this particular by act of the parties, and is executed, all questions arising from this defect are put at rest. Want of mutuality is no defense to an executed contract. Want of mutuality in the inception of the contract may be remedied by the subsequent conduct of the parties, or by the execution of the agreement. (South etc. R. R. v. Highland Ave. etc. R. R., 98 Ala. 400, 39 Am. St. Rep. 74, 13 So. 682; Muscatine Water Co. v. Lumber Co., 85 Iowa 112, 39 Am. St. Rep. 284, 52 N.W. 108; Nutting v. McCutcheon, 5 Minn. 382; Willetts v. Insurance Co., 45 N.Y. 45, 6 Am. Rep. 31; Grove v. Hodges, 55 Pa. 504; Jones v. Durgin, 16 Mo.App. 37; Welch v. Whelpley, 62 Mich. 16, 4 Am. St. Rep. 810, 28 N.W. 744; Stone v. United States, 94 U.S. 76.)

John B. Goode and Willis Sweet, for Respondents.

The witness Roche was asked the following questions on cross-examination: "Did you ever see Mr. Kalanquin's second contract with the Northern Pacific Railway Company?" Appellant objected to the question on the ground that it was irrelevant and immaterial. The statute requires of counsel at the trial that he point out why any testimony sought to be elicited is objected to. It is not sufficient that counsel say: "Objected to on the ground that it is immaterial and irrelevant." A parrot might do that. But why is a question immaterial or irrelevant? Without the reason being given the objection is worthless. (Dunning v. Rankin, 19 Cal. 644; Kiler v. Kimbal, 10 Cal. 268.) After the testimony of appellant was all in, counsel for respondent moved for a nonsuit. This motion was based upon the following status of the case at that time: Appellant relied in the lower court upon the alleged verbal contract, made on the eighteenth day of March, 1899. If it proved a contract at all, it was a continuation of the terms of the old contract, by ratification, after May 1, 1899. Respondent contended then, and contends now, that the variance between the allegations of the complaint and the testimony offered in support thereof are so at variance as to be fatal to appellant's cause. (Rev. Stats., sec. 4225; Stout v. Coffin, 28 Cal. 65; Butler v. Bates, 7 Cal. 137; Tomlinson v. Monroe, 41 Cal. 94.)

SULLIVAN, J. Quarles, C. J., concurs. STOCKSLAGER, J., Dissenting.

OPINION

SULLIVAN, J.

This is the second appeal in this case. The judgment of nonsuit in favor of defendant, who is respondent here, was reversed, and the cause remanded for a new trial. The opinion is found in 62 P. 925. The issues made by the pleadings are stated in that opinion, and will not be repeated here. A new trial was had, and the verdict and judgment were in favor of the defendant. This appeal is from the judgment and order denying a new trial.

Assignments of error 1 and 2, we think are well founded, and the court erred in refusing to let the witness answer said questions. Those questions are not leading, as they are not suggestive of the answer.

The third error assigned in the transcript is not referred to in brief of counsel, and is waived.

The fourth and ninth assignments of error refer to the right of counsel for defendant to cross-examine a witness for the plaintiff to contradict the material allegations of the complaint; counsel for appellant contending that the denials in the answer are not sufficiently specific to raise an issue of fact, and for that reason such cross-examination was not proper. Those assignments are not tenable, as the answer, taken as a whole, puts in issue the making of the contract sued on, and that was a very material issue--the issue or fact upon which all other allegations of the complaint were based. While the answer is not a model in pleading, yet we think it sufficient to put in issue the material allegations of the complaint.

There was no error in the rulings of the court set forth in the fifth and seventh assignments of error.

The tenth assignment of error is well taken. There was not a sufficient showing of the loss of the bill of particulars, containing an itemized statement of the goods and cash furnished defendant by plaintiff. It was not shown that it was lost or destroyed without the fault of defendant, and that he was unable to procure a copy thereof.

The court erred in refusing to permit the witness James Roche to answer the question set forth in the eleventh assignment of error.

The twelfth assignment involves a motion to strike out all of the evidence of defendant as to amount of goods furnished by plaintiff. All competent evidence tending to prove the value of such goods should have been admitted. It appears from this assignment that the court held that, so far as defendant was concerned, he might prove the value of said goods by oral evidence, and the plaintiff must prove such value by written evidence. If such was the ruling, it was error. The value of said goods may be established by any competent evidence, either written or oral. The best evidence obtainable must always be produced.

The modification of the second instruction requested by plaintiff is the thirteenth error assigned. The modification was merely a repetition of instructions given at the request of both appellant and respondent, and, while it was not proper to repeat them, we do not think it was prejudicial error. A court may, however, prejudice a jury by unnecessarily repeating an instruction, and therefore repetition ought to be avoided.

The refusal to give the following instruction is the fourteenth error assigned: "The court instructs the jury as a matter of law that, when witnesses are otherwise equally credible and their testimony entitled to equal weight, greater weight and credit should be given to those who swear affirmatively or positively to a fact, rather than to those who swear negatively or to a want of recollection." That instruction is applicable to the positive testimony of the witnesses Sander and Roche, and the testimony of defendant, who testified to conclusions and to a want of recollection, and should have been given.

The refusal to give the fifth instruction requested by plaintiff is assigned as error. This instruction was properly refused, because each of the witnesses were interested in the final result of the suit. The fifth instruction requested by the plaintiff was properly refused by the court.

There was no error in the modification of the seventh instruction requested by plaintiff, and giving the same as modified.

Under the...