Idaho Mercantile Company v. Kalanquin

• Decision Date: 14 November 1900
• Citation: 7 Idaho 295,62 P. 925
• Parties: IDAHO MERCANTILE COMPANY v. KALANQUIN
• Court: Idaho Supreme Court

62 P. 925

7 Idaho 295

IDAHO MERCANTILE COMPANY v. KALANQUIN

Supreme Court of Idaho

November 14, 1900

MOTION FOR NONSUIT-GROUNDS OF MOTION.-A motion for a nonsuit must specify particularly the point relied upon for such nonsuit and thus call the attention of the court and opposing party to the grounds of the motion.

PRIMA FACIE CASE.-It is error to grant a nonsuit where the plaintiff has made a prima facie case.

ACTS AND DECLARATIONS OF PARTIES.-It is error to exclude evidence of the acts and declarations of the parties to a contract that tend to prove the contract alleged in the complaint.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Judgment reversed. Costs awarded to the appellant.

Charles L. Heitman, for Appellant.

A party moving for nonsuit must state in his motion the precise grounds on which he relies, and a motion not complying with this rule, but stated in general terms, should be denied. (Miller v. Luco, 80 Cal. 237, 22 P. 195; Loring v. Steuart, 79 Cal. 201, 21 P. 651; Coffey v Greenfield, 62 Cal. 608; Shain v. Forbes, 82 Cal. 582, 23 P. 198; Gardiner v. Schmaelzle, 47 Cal 588.) Appellant submits that the court erred in sustaining the motion for a nonsuit on the further ground that the second cause of action set up in the plaintiff's complaint was admitted by the defendant in his answer, and in open court, during the progress of the trial, defendant admitted that the amount claimed to be due by plaintiff in its second cause of action had been at one time due and owing from defendant to plaintiff, and defendant claimed that said indebtedness had been paid, but defendant introduced no proof to show that said indebtedness had been paid or wiped out in any manner whatever. (2 Greenleaf on Evidence, sec. 516; 18 Am. & Eng. Ency. of Law, 253; Lisman v. Early, 15 Cal. 199; Caulfield v. Sanders, 17 Cal. 569; Lovelock v. Greeg, 14 Colo. 53, 23 P. 86; Lerche v. Brasher, 104 N.Y. 157, 10 N.E. 58; Clarke v. Mullen, 16 Neb. 481, 20 N.W. 642; Tootle v. Maben, 21 Neb. 617, 33 N.W. 264.) The plaintiff made out a prima facie case, and the motion for nonsuit should have been overruled even as to the first cause of action in plaintiff's complaint. (Idaho Rev. Stats., sec. 4354; Black v. Lewiston, 2 Idaho 254, 13 P. 80; Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019; Robbins v. Kimball, 55 Ark. 414, 29 Am. St. Rep. 45, 18 S.W. 457; Watkins v. Grear, 52 Ark. 65, 11 S.W. 1021.)

Willis Sweet and John B. Goode, for Respondent.

It is a cardinal rule that the proofs offered must correspond with the allegations. In this case there was a material variance between the character of the contract alleged and the one sought to be proven. This was ground for nonsuit unless plaintiff obtained leave to amend his complaint so as to make it conform to his proofs, and this he failed to do. (Tomlinson v. Monroe, 41 Cal. 94; Johnson v. Moss, 45 Cal. 517; Gilman v. Bootz, 63 Cal. 120.) A motion for nonsuit may be made orally, unless a statute require motions of this description to be written. (6 Ency. of Pl. & Pr. 880; Milton v. Denver etc. R. Co., 1 Colo. App. 307, 29 P. 22.) It is submitted that the rule invoked by counsel does not require anything more than that the ground of the motion be so stated as to be apparent to the court. That it was so stated must be concluded from the fact that the court granted the motion. (Daley v. Russ, 86 Cal. 117, 24 P. 867; Miller v. Wade, 87 Cal. 410, 25 P. 487.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover $ 1,072.28, stated in two causes of action. It appears from the record that the respondent (who was defendant in the court below) entered into a contract with the Northern Pacific Railway Company, whereby he agreed to furnish said company thirty-five thousand ties at the rate of twenty-four cents for first-class and seventeen cents for second-class ties, and thereafter, on the fifteenth day of November, 1898, the respondent entered into a contract with the appellant corporation, the Idaho Mercantile Company, whereby it was to have an equal share in all profits and losses that might accrue from the sale of said thirty-five thousand ties to the Northern Pacific Company. The appellant agreed to and did furnish the tie choppers and others engaged in making and delivering said ties such tools, clothing, provisions, and forage as they might need while getting out and delivering said ties. Before the completion of the delivery of said ties the respondent entered into another contract with said railway company, whereby he agreed to furnish to said company a large number of ties greatly in excess of said thirty-five thousand, and entered into a verbal contract with the appellant corporation continuing the terms of the first contract, and making them applicable to the second contract of respondent with the railway company. It is alleged in the amended complaint that the appellant kept and performed its part of said two contracts, and furnished supplies to the persons who manufactured and delivered said ties to the railway company. It is alleged that the respondent neglected, failed, and refused to deliver or pay over to appellant one certain voucher, amounting to the sum of $ 1,111.78, received by him from said railway company, on said tie contracts, as by said contracts made with appellant he had agreed to do. And for a second cause of action it is alleged that...