Jensen v. Bledsoe

• Decision Date: 17 April 1979
• Docket Number: No. 12169,12169
• Citation: 100 Idaho 84,593 P.2d 988
• Parties: Royce JENSEN, Plaintiff, Counter-Defendant-Appellant, v. Cecil V. BLEDSOE and Carmen J. Bledsoe, husband and wife, Defendants, Counter-Claimants-Respondents.
• Court: Idaho Supreme Court

Page 988

593 P.2d 988

100 Idaho 84

Royce JENSEN, Plaintiff, Counter-Defendant-Appellant, v. Cecil V. BLEDSOE and Carmen J. Bledsoe, husband and wife, Defendants, Counter-Claimants-Respondents.

No. 12169.

Supreme Court of Idaho.

April 17, 1979.

Daniel A. Slavin of Stephan, Slavin, Eaton & Stephan, Twin Falls, for Royce Jensen.

Donald J. Chisholm of Goodman, Duff & Chisholm, Rupert, for Cecil V. Bledsoe.

McFADDEN, Justice.

This case arises out of a contract for the sale of the realty and personalty constituting a meat packing plant. On December 21, 1973, plaintiff-appellant Royce Jensen agreed to make extensive improvements to the plant and to sell it to defendants-respondents Cecil V. and Carmen J. Bledsoe for $160,000. The contract provided:

That the Buyers do hereby covenant and agree to pay to the Seller the sum of FIFTY THOUSAND DOLLARS ($50,000.00) lawful money of the United States of America, on the execution of this agreement and the further sum of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000.00) in monthly installments . . . .

Respondents took possession of the plant two days later although the $50,000 down payment required by the contract had not been made. Instead, respondents executed and delivered a promissory note to appellant for the amount of the down payment and paid $10,000 on the note. On April 1, 1974, the parties reduced to writing several amendments to the initial contract. The amendment memorandum provided that appellant (seller) would return to respondents (buyers) the promissory note given as a down payment and that the $40,000 balance of the down payment would be made by respondents in two installments: $15,000 by April 1, 1974, and $25,000 by May 1, 1974. In return, appellant was given an extension on the time for completing the improvements.

Although the first $15,000 installment on the down payment was timely made, respondents failed to make the $25,000 installment payment due May 1, 1974. In early June, 1974, appellant gave notice of default pursuant to the contract. Respondents tendered $15,000 of the second installment a few days later but it was refused.

Appellant instituted this action seeking forfeiture of the contract. He also prayed for money damages for the rental value of the property from the date of default and for harm he alleged respondents had done to the property. Later the complaint was amended, seeking foreclosure of the contract and judicial sale of the property.

Respondents admitted to not paying the balance of the down payment. However, in a counterclaim respondents alleged that appellant had fraudulently misrepresented both the characteristics of the packing plant's sewage treatment system and a cased well on the property; that appellant had failed to make some agreed improvements and had made others in an unworkmanlike manner; and that appellant had failed to pay irrigation district assessments predating the contract, to deliver full possession of the real property, and to deliver to the escrow holder an unencumbered warranty deed and a title policy showing marketable title in the buyers, all required by the contract. The counterclaim asked for money damages and an order prohibiting appellant from entering the premises.

A restraining order was issued and respondents made some of the improvements themselves, apparently because the United States Department of Agriculture threatened to close the plant unless the improvements were finished by January 1, 1975.

After trial in June, 1975, the trial court denied appellant relief on his complaint. The court gave respondents judgment on their counterclaim, however, finding that appellant had fraudulently misrepresented the condition of the well and sewage treatment system, had failed to disclose hidden defects in the building and had improperly constructed the improvements. The court ruled that respondents were justified in withholding the balance of the down payment and therefore had not breached the contract. Respondents were awarded more than $100,000 as damages for misrepresentation of the condition of the well and sewer system and also as damages for failure to comply with the construction portion of the contract and for failure to disclose hidden defects. Sums awarded respondents were to be offset against the amount due appellant on the contract. The trial judge entered judgment for respondents and this appeal followed.

On appeal appellant raises numerous assignments of error. Appellant first contends that the trial court erred in concluding that he is liable for fraudulently misrepresenting that a cased well on the property was usable. Appellant argues that the court could not make such a conclusion after finding that respondent Cecil Bledsoe knew the well was unusable (and therefore knew the misrepresentation was false). Appellant correctly points out that for a misrepresentation to be actionable, the hearer must be ignorant of the statement's falsity and rely on its truth. Fowler v. Uezzell, 94 Idaho 951, 500 P.2d 852 (1972). Appellant therefore asks that the trial court's conclusion of law be reversed and that the damages awarded for this item be stricken from the judgment.

Finding of fact seventeen, on which the challenged conclusion of law is based, reads:

17. That the cased well had been abandoned and a sand point used in its place and that defendants knew that the cased well was not in use at the time of his representation to defendant Cecil Bledsoe.

Initially this court notes that "His representation" makes no sense in light of the plural antecedent "defendantS." Also, our examination of the structure of the findings of fact indicates that the trial court had in mind the nine elements of fraudulent misrepresentation and intended to find one such element: the speaker's knowledge of the falsity of his statement. In finding number fifteen, the court states "that prior to the purchase and execution of the contract, the plaintiff specifically represented to defendant Cecil Bledsoe that the primary source of water for the main plant was a cased well in front of the plant . . . ." In finding number sixteen, the court found "That defendants relied upon said representations in making the purchase of the property . . . ." Finding seventeen then addresses the question of appellant's knowledge of the falsity of his representations. A subsequent finding states "that the reasonable cost for a cased well of the type represented by plaintiff to defendants is $1,902.25".

" It is a well established rule that a judgment should not be reversed or a new trial ordered for what so clearly appears to be merely a clerical error." Falkenstein v. Steele, 77 Cal.App.2d 398, 175 P.2d 257 (1946) (trial court intended "true" to read "untrue"). Accord, Ellis v. Strickland, 158 Fla. 736, 30 So.2d 100 (1947) ("John Stallings" should have read "John Strickland"); Rawson v. Blanton, 204 Miss. 851, 35 So.2d 65 (1948) (in action by W. T. Blanton against W. Rawson, judgment for "W. T. Rawson" should have read "W. T. Blanton"). In light of the above findings of fact and the testimony of respondent Cecil Bledsoe in the record, this court concludes that finding seventeen should read: "that Plaintiff knew that the cased well was not in use at the time of his representation to defendant Cecil Bledsoe." In the instant case this court declines to reverse a portion of the judgment on the basis of the lower court's apparent clerical error. Rather, this court will read finding of fact seventeen as the court below intended it to read.

Appellant next contends that regardless of any clerical error in finding seventeen, the trial court erred in finding that he fraudulently misrepresented the characteristics of the well and the plant's sewage treatment system. Appellant argues that respondents failed to prove all the elements of fraudulent misrepresentation by clear and convincing evidence. Appellant contends that the trial court erred because the testimony of appellant and respondent Cecil Bledsoe are directly contradictory. Thus the evidence was not clear and convincing.

Whether evidence is clear and convincing is a question for the trial court. "The trial court is the appropriate tribunal to weigh the evidence, and determine whether it is convincing and satisfactory, within the meaning of the rule." Wright v. Rosebaugh, 46 Idaho 526, 529, 269 P. 98, 99 (1928), quoted in Parks v. Mulledy, 49 Idaho 546, 290 P. 205 (1930). See, Collins v. Parkinson, 98 Idaho 871, 574 P.2d 913 (1978); Russ Ballard & Family Achievement Institute v. Lava Hot Springs Resort, Inc., 97 Idaho 572, 548 P.2d 72 (1976).

In determining whether evidence is clear and convincing, the trial court is entitled to weigh, compare, test and judge the worth of the evidence in light of all the facts and circumstances in evidence. Burningham v. Burke, 67 Utah 90, 245 P. 977 (1926). That is, the court determines the testimony's probative force, and effect, not merely its quantity. Heitman v. Davis, 127 Fla. 1, 172 So. 705 (1937). "Additionally, the trial judge is the arbiter of conflicting evidence; his determination of the weight, credibility, inference and implications thereof is not to be supplanted by this court's impressions or conclusions from the written record." Meridian Bowling Lanes, Inc. v. Brown, 90 Idaho 403, 411, 412 P.2d 586, 590 (1966); Fish v. Fleishman, 87 Idaho 126, 391 P.2d 344 (1964); Sellars v. Sellars, 73 Idaho 163, 248 P.2d 1063 (1952). Thus if the trier of fact finds a fact to be established by clear and convincing evidence, that finding will not be reversed unless the finding is clearly erroneous or not supported by substantial and competent evidence. I.R.C.P 52(a); Courtright v. Robertson, 99 Idaho 575, 586 P.2d 265 (1978); Shrives v. Talbot, 91 Idaho 338, 421 P.2d 133 (1966).

In the instant case the court received conflicting evidence concerning the representations made about the sewage treatment system. Appellant testified that he represented...