Keane v. Pittsburg Lead Mining Co.

Decision Date03 November 1909
Citation17 Idaho 179,105 P. 60
PartiesJOSEPH P. KEANE, Appellant, v. THE PITTSBURG LEAD MINING COMPANY, a Corporation, Respondent
CourtIdaho Supreme Court

WITHDRAWAL OF CASE FROM JURY-BEST EVIDENCE-WITNESS STATING CONTENTS OF WRITING-CONTRACT-AUTHORITY OF AGENT-RES ADJUDICATA-INTERVENTION-JUDGMENT TAXING COSTS-APPEAL FROM.

1. Where the pleadings present an issue of fact, and there is evidence which tends to support the allegations of the complaint, and it is necessary to determine such issue of fact in order to determine whether the plaintiff or the defendant shall recover, an instruction which directs the verdict of the jury for the defendant has the same effect as the sustaining of a motion for a nonsuit, and admits the truth of the plaintiff's evidence and every inference of fact that can be legitimately drawn therefrom, and is to the effect that there is no evidence supporting the plaintiff's case and that the evidence would not support a verdict, even if found for the plaintiff; and if there is evidence supporting the complaint, such instruction is erroneous.

2. Where certain facts appear of record or in written instruments, it is error for the court to admit oral testimony of the contents of such records or instruments without first showing their loss or disappearance and the inability to produce the same.

3. Where a witness is asked if he did not write a certain letter containing certain matter, and objection is made to such question, without such witness being shown such letter or given an opportunity to identify the same, it is error for the court to overrule such objection.

4. Where the relationship between K. and V. is fixed by contract, it is error to permit V. to testify as to what his understanding of the matter was, as the question is one of contract and is to be determined by the contract, and not by V.'s understanding of the relationship.

5. Where the authority of an agent is called in question, it is error to permit the agent to testify as to his opinion of his authority, as the question is not one of the witness' opinion as to authority but what the authority in fact was.

6. The basis upon which an adjudication bars a future action is that the same question or matter was actually and directly in issue, and judicially determined in the former suit between the same parties or their privies by a court of competent jurisdiction.

7. Where a petition to intervene is filed, and the prayer of such petition is granted upon condition that the petitioner file an answer or cross-bill within a fixed time and he fails to file such answer or cross-bill and judgment pro confesso is entered against him, the effect of such judgment is only to preclude his right to intervene, but does not conclude him upon any matter which might have been put in issue by such answer or cross-bill.

8. A judgment against a petitioner to intervene, disallowing such petition or dismissing the same because an answer or cross-bill is not filed, will not support the plea of res adjudicata, as the judgment is only a judgment of nonsuit.

9. Where the question of the authority of an agent to make a contract is in issue, all evidence which tends in any way to show such authority or the limitation upon such authority is admissible.

10. An order of the court made after final judgment, taxing costs is an order from which a separate appeal is allowed; and an appeal from the judgment does not present to this court for review the action of the court in taxing costs; and the memorandum of costs and the motion to retax are not properly a part of the record on appeal from the judgment.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, in and for Shoshone County. Hon. W. W. Woods, Judge.

An action to recover debt. Judgment for defendant. Plaintiff appeals. Reversed.

Judgment reversed and a new trial ordered. Costs awarded to appellant. Petition for rehearing denied.

Gray &amp Knight, and Wm. K. Shissler, for Appellant.

This court has repeatedly held that if the evidence introduced in an action even tends to establish the allegations of the complaint, its sufficiency should be determined by the jury and not by the court. (Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019; Black v. City of Lewiston, 2 Idaho 276; Lewis v. Lewis, 3 Idaho 645, 33 P. 38; Simpson v. Remington, 6 Idaho 681, 59 P. 360; Idaho Merc. Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; York v. Pacific & Northern Ry. Co., 8 Idaho 574, 69 P. 1042; Idaho Comstock Min. & Mil. Co. v. Lundstrum, 9 Idaho 257, 74 P. 975; Small v. Harrington, 10 Idaho 499, 79 P. 461; Later v. Haywood, 12 Idaho 79, 85 P. 494; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 643, 89 P. 624; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Colvin & Rinard v. Lyons, 15 Idaho 180, 96 P. 572.)

A judgment simply dismissing the demand of an intervenor on the ground that he was absent and not represented at the trial of the cause cannot support the appeal of res adjudicata. The judgment is strictly one of nonsuit. (Black on Judgments, sec. 700.)

"A judgment of nonsuit, voluntary or involuntary, is not a bar to another action for the same cause." (Gummer v. Omro, 50 Wis. 247, 6 N.W. 885.) "A nonsuit is not a determination of a cause of action upon the merits and does not become a bar to another action." (Merrick v. Hill, 77 Hun (N. Y.), 30, 28 N.Y.S. 237.)

"When a suit in equity is dismissed without a consideration of the merits, the dismissal should be without prejudice." (Swan Land & Cattle Co. v. Frank, 148 U.S. 606, 13 S.Ct. 691, 37 L. ed. 578; Kendig v. Dean, 97 U.S. 423, 24 L. ed. 1061; Waltes v. Wood, 61 Iowa 290, 15 N.W. 116; Kern v. Wilson, 81 Iowa 407, 48 N.W. 919.)

Kerns & Ryan, for Respondent, cite no authorities.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

At the close of the evidence the court gave to the jury the following instruction: "Gentlemen of the jury, the court instructs you, as a matter of law, that the evidence is insufficient to support a verdict in favor of the plaintiff in this case and you are, therefore, instructed to find for the defendant." In accordance with this instruction the jury returned a verdict for the defendant. Plaintiff moved for a new trial, which was overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial.

The plaintiff claims that he was one of the incorporators of the California Consolidated Mining Company and subscribed for 333,333 shares of the capital stock of said company, which shares were issued and delivered to the plaintiff; that 216,667 shares of said stock were indorsed in blank by the plaintiff and were deposited with James Viles of Chicago, Illinois, for the purpose of sale; that J. H. McClarren of Pittsburg, Pennsylvania, was engaged in negotiations for the purchase of a majority of the stock of the California Consolidated Mining Company and other mining claims adjoining, for the purpose of organizing a corporation and promoting the development of said property. That McClarren opened negotiations with Viles and this plaintiff for the purchase of the majority of the capital stock of the said California Consolidated Mining Company, said Viles and the plaintiff being the principal stockholders of said company, and that said stock was deposited by this plaintiff with Viles at the request of McClarren, with instructions to deliver the same to McClarren or upon his order upon the payment to said Viles for said stock of the sum of ten cents per share, to wit, $ 21,066.70; that McClarren knew that the plaintiff was the owner of said stock and that Viles was acting solely and only as the agent of the plaintiff; that on March 28, 1905, Viles sold, transferred, assigned and delivered the said 216,667 shares of stock to McClarren, as trustee for the defendant, and that said McClarren took and accepted said stock from said Viles and caused the same to be duly transferred upon the books of the corporation into the name of McClarren, trustee, for the defendant; and afterward caused the defendant to be incorporated and thereafter conveyed said 216,667 shares to the defendant; that neither McClarren nor the defendant has paid the purchase price for said stock and the same is due, for which judgment is demanded.

The defendant admits that the plaintiff was a subscriber for 333,333 shares of the capital stock of the California Consolidated Mining Company, but denies that such stock was ever issued and delivered to the plaintiff, and denies that the plaintiff was the owner of 216,667 shares, or that the same were indorsed in blank by plaintiff and deposited with Viles for sale; admits that J. H. McClarren was engaged in negotiating for the purchase of a majority of the stock of the California Consolidated Mining Company and opened negotiations with James Viles, but denies that McClarren ever had any negotiations with the plaintiff, and denies that Viles was instructed to deliver said stock to McClarren or to his order upon the payment to Viles of the sum of ten cents per share, to wit, $ 21,066.70; denies that McClarren knew that the plaintiff was the owner of said stock, and that Viles was acting solely and only as the agent of plaintiff; denies that on March 28, 1905, Viles sold, transferred, assigned or delivered said certificates of stock to McClarren or that McClarren took or accepted said stock from Viles or caused the same to be transferred upon the books of the corporation in the name of McClarren, trustee; denies that McClarren thereafter conveyed to the defendant the said 216,667 shares of stock in the California Consolidated Mining Company or that the defendant has since been or now is the...

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