Intermountain Farmers Equity v. Norris

• Decision Date: 07 October 1924
• Citation: 39 Idaho 685,229 P. 745
• Parties: INTERMOUNTAIN FARMERS EQUITY, M. J. KERR et al., Trustees, Substituted for INTERMOUNTAIN FARMERS EQUITY, a Defunct Corporation, Respondents, v. A. P. NORRIS, Appellant
• Court: Idaho Supreme Court

229 P. 745

39 Idaho 685

INTERMOUNTAIN FARMERS EQUITY, M. J. KERR et al., Trustees, Substituted for INTERMOUNTAIN FARMERS EQUITY, a Defunct Corporation, Respondents, v. A. P. NORRIS, Appellant

Supreme Court of Idaho

October 7, 1924

EVIDENCE-ADMISSIBILITY-INSTRUCTIONS-REQUESTED INSTRUCTION-APPEAL AND ERROR-ASSIGNMENT OF ERROR.

1. Evidence of the condition of a shipment of oats upon arrival at the point of destination is admissible to show the condition of the oats when loaded, where there is evidence tending to show either an absence of anything that would naturally result in a change in such condition or tending to explain any change that has occurred.

2. It is not error to refuse to give an instruction where no evidence has been adduced relating to the subject thereof.

3. An assignment of error that the evidence is insufficient to sustain the verdict, findings or other decision of the trial court will not be considered unless there is a specification of the particulars in which it is claimed the insufficiency consists.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action to recover damages for breach of warranty. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Anderson & Jeffery, for Appellant.

"For the purpose of showing a particular condition of things it is not permissible, according to fundamental principles, to show condition at other places than the one in question--at any rate if such condition at other places is so remote that differences may exist between there and place in question." (10 R. C. L. 944, sec. 113; Vermillion County v. Chipps, 131 Ind. 56, 29 N.E. 1066, 16 L. R. A 228; Hunt v. Lowell Gas & Light Co., 8 Allen (Mass.), 169, 85 Am. Dec. 697; Dundas v Lansing, 75 Mich. 499, 42 N.W. 1011, 5 L. R. A. 143; Hawley v. Sumpter R. Co., 49 Ore. 509, 90 P. 1106 12 L. R. A., N. S., 526; Brooks v. Acton, 117 Mass. 204.)

In order that evidence of condition at another point and time than one in issue be admissible, there must be proof of similarity of condition at both points and times. (Lake Erie Ry. Co. v. Mugg, 132 Ind. 168, 31 N.E. 564; Mitchell v. Rowley, 63 Misc. 643, 118 N.Y.S. 751; Sears v. Bailey, 58 Misc. 145, 110 N.Y.S. 467; United States v. Ross, 92 U.S. 281, 33 L.Ed. 707; Durkee v. India Ins. Co., 159 Mass. 514, 34 N.E. 1133.)

Where a party is entitled to the benefit of a contract and can save himself from loss arising from breach thereof at a trifling expense or with reasonable exertions, it is his duty to do so, and he can charge the party in default with such damages only as with reasonable endeavors and expense he could not prevent. (17 C. J., 771, sec. 99d, and cases cited; Warren v. Stoddard, 105 U.S. 224, 26 L.Ed. 1117; Henrici v. South Feather Land etc. Co., 177 Cal. 442, 170 P. 1135.)

Budge & Merrill and P. C. O'Malley, for Respondents.

"When an assignment of error is that the evidence is insufficient to sustain the verdict, the assignment will be stricken and not considered, if it does not specify the particulars of insufficiency." (Hole v. Van Duzer, 11 Idaho 79, 81 P. 109; Warren v. Stoddart, 6 Idaho 692, 59 P. 540; Later v. Haywood, 14 Idaho 45, 93 P. 374; Spongberg v. First Nat. Bank, 18 Idaho 524, Ann. Cas. 1912A, 95, 110 P. 716, 31 L. R. A., N. S., 736; Bain v. Olsen, ante, p. 170, 226 P. 668; Rosser v. Broadwater Mills Co., 54 Utah 522, 182 P. 204; Merrill v. Fremont Abstract Co., ante, p. 238, 227 P. 34.)

"Instructions asked are properly refused when they are not based upon some evidence material to the controversy, although correct as abstract principles of law." (Johnson v. Fraser, 2 Idaho 371, 18 P. 48; Gwin v. Gwin, 5 Idaho 271, 48 P. 295.)

WM. E. LEE, J. McCarthy, C. J., and Dunn and William A. Lee, JJ., concur.

OPINION

WM. E. LEE, J.

The Intermountain Farmers Equity, a corporation, herein referred to as the respondent, alleged and proved that it purchased a carload of oats from appellant, F. O. B. Inkom, at the agreed price of $ 1.35 per hundred; that, upon the surrender of bill of lading, it paid appellant approximately ninety per cent of the purchase price and agreed to pay him the balance if the oats came up to grade and weight. Prior to the purchase, appellant took a sample of his oats to respondent; and it was alleged and proved that the sample was examined and tested and that appellant agreed that the car would equal the sample and would weigh 36 pounds, or better, to the bushel, of No. 3 grade, or better, of good color, free from weed seed, dry and good marketable oats. It was alleged and proved that the carload of oats did not equal the No. 3 grade; that they were wet and sprouting and contained so large a percentage of weed seed and other foreign matter that they did not come up to any standard grade. Appellant admitted that he took a sample of the oats to respondent and that it was tested by respondent. He alleged that he agreed that the carload would be as good as the sample; that the portion of the purchase price retained was to guarantee respondent against loss because of weight or grade; and that the oats, when loaded at Inkom, were equal to the sample, and complied with his contract of sale.

The car of oats was not inspected or examined until it reached Ogden Utah when the car was examined by representatives of the Ogden Grain Exchange and of the railway company, who certified (one of whom also testified) that the car was "O. K." and was not leaking. The oats were examined and tested by a licensed inspector connected with the Ogden Grain Exchange, who certified and testified that his test showed that the oats contained 20.4 per cent of moisture, and weighed 33 pounds to the bushel. He also classed them as "sample" oats, which meant that they did not equal any standard grade. The oats were examined at Salt Lake City, Utah by one Merrill, a grain dealer of many years' experience, who testified that the oats were damp throughout, that some had sprouted; and that while the entire quantity of the shipment weighed approximately 62,800 pounds the foreign matter, including weed seed, weighed approximately 11,000 pounds. The witness Merrill also testified that because of his experience in handling oats, he could determine from an examination whether they had become wet or damp in transit or had been wet or damp when loaded and shipped; and that the oats in question were wet when loaded in the car. He explained that if grain is loaded in a car when it is dry and there are leaks in the car, all of the sacks would not be wet; they would not...