Kelly v. Arave

• Citation: 243 P. 366,41 Idaho 723
• Parties: HARRY KELLY, Respondent, v. WILLIAM ARAVE, Appellant
• Decision Date: 09 December 1925
• Court: Idaho Supreme Court

243 P. 366

41 Idaho 723

HARRY KELLY, Respondent, v. WILLIAM ARAVE, Appellant

Supreme Court of Idaho

December 9, 1925

APPEAL AND ERROR-REVIEW-VERDICT-SUFFICIENCY OF EVIDENCE-CONFLICT-AFFIRMANCE.

1. Where there is a conflict in the evidence, and substantial evidence to support the verdict, it will not be set aside on appeal.

2. Evidence examined, and held to be sufficient to support the verdict.

Petition for Rehearing Denied February 1, 1926.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge. Action for agreed rental of pasture land. Judgment for plaintiff.

Affirmed.

E. M Holden and C. E. Crowley, for Appellant.

The evidence is not sufficient to support a verdict or judgment for respondent. (Quayle v. Ream, 15 Ida. 666, 99 P 707; Wilson v. Vogeler, 10 Ida. 599, 79 P. 508; 1 Abbott's Trial Evidence, 3d ed., 787, sec. 11; Schultz v Jordan, 141 U.S. 213, 11 S.Ct. 906, 35 L. ed. 705.).

The verdict and judgment will be reversed where the evidence is insufficient to support or sustain the same. (Buster v. Fletcher, 22 Ida. 172, 125 P. 226; Quayle v. Ream, supra; Wilson v. Vogeler, supra.).

E. H. Casterlin, for Respondent.

A verdict on substantially conflicting evidence will not be disturbed. (Davidson Grocery Co. v. Johnston, 24 Ida. 336, 133 P. 929, Ann. Cas. 1915D, 542, 24 Idaho 336, 133 P. 929.).

In case of conflict, if there is evidence in the record which, if uncontradicted, would support the judgment, the judgment will be affirmed. (Singh v. McKee, 38 Ida. 656, 225 P. 400; Fritcher v. Kelley, 34 Ida. 471, 201 P. 1037.).

A judgment will not be reversed where the evidence is conflicting and there is substantial evidence to support the verdict of the jury. (McMahon v. Cooper, 23 Ida. 413, 130 P. 456; Friedrich v. Donahue, 20 Ida. 92, 116 P. 1029.).

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur. Budge, J., dissents.

OPINION

TAYLOR, J.

Plaintiff instituted this action to recover the sum of $ 50.0 and interest, alleged to be the agreed rental of certain pasture land leased to defendant in November, 1919, for a term extending from that time until the following April. At the trial, plaintiff introduced evidence tending to prove that he sold the pasture to Earl Arave, defendant's son, as the agent of defendant. The defendant admitted the purchase by Earl Arave, but denied that he was acting as defendant's agent, and introduced evidence tending to prove that Earl Arave, with two others, was in business for himself; that he was not, nor did he represent himself to be, defendant's agent; and that defendant did not hold Earl Arave out to plaintiff or anyone else as his agent. At the close of plaintiff's evidence, defendant made a motion for nonsuit which was denied. This was renewed at the close of all the evidence, and again denied. Defendant also moved for directed verdict, which was denied. The jury returned a verdict for plaintiff for $ 575.83, and from the judgment rendered thereon this appeal is taken.

Appellant specifies as error the denial of his motion for nonsuit, and the denial of his motion for a directed verdict, and contends that the evidence is insufficient to support the verdict.

It is not disputed that the pasture was solid and delivered to Earl Arave. The question is whether Earl Arave was acting as defendant's agent. Plaintiff testified that Earl Arave, at the time he purchased the pasture, represented himself as acting for defendant. This Earl Arave denied. Defendant argues that evidence of agency was inadmissible because it was not alleged in the complaint. The fact that agency was not alleged in the complaint was no bar to its proof, and recovery on the fact.

John H. Coles had been the owner of the farm which Earl Arave was operating. Coles listed this farm with plaintiff, who was a real estate broker as Well as a farmer, for sale. In January, 1919, Earl Arave and Ray France, copartners, entered into a contract with Coles; plaintiff acting as broker and mediator, Whereby Earl Arave and Ray France took an option, for the consideration of $ 1,000, which Earl Arave paid, to purchase the farm for the sum of $ 60,000, the initial payment to be $ 15,000, and the balance to be secured by a mortgage from the grantees to the grantor for $ 45,000. It was agreed that, in the event the copartners elected to purchase the farm, the consideration for the option; $ 1,000, should be credited on the initial payment of $ 15,000.

It appears that Earl Arave and Ray France were not able to procure enough money to make the first payment of $ 15,000, and they took Frank Arave, a brother of Earl, with them as a third partner, and the three young men, acting through Earl Arave, who assumed the office of manager of the copartnership, entered into an oral agreement with defendant, his father, whereby defendant advanced, $ 14,000, the balance due, on the initial payment, and took title to the farm in his own name, giving back to Coles a Mortgage for $ 45,000, the balance of the purchase price. Defendant's contention is that he then turned the farm over to, the three copartners, under an agreement that the latter would operate it, and pay, out of the ranch, all expenses, taxes and the interest on the $ 45,000 mortgage indebtedness to Coles, and repay him the $ 14,000 which he had advanced, with eight per cent interest, as they were able, and also assume and pay the $ 45,000 mortgage indebtedness to Coles; that when the sum of $ 14,000, which he had advanced, and interest, was repaid, defendant would convey the legal title to the three copartners, subject, of course, to the $ 45,000 mortgage; that if the copartners failed to make good on the farm, they would surrender possession to defendant; but that, during the period of their occupancy, all moneys realized from the farm, over and above expenses, interest and taxes; and what payments on the principal sums they chose to make, were to be the property of the copartners. The copartners entered into possession of the farm in February, 1919.

There are various theories under which plaintiff might recover in this action and to which the evidence adduced is in some measure adaptable. The jury found in favor of plaintiff, and if, therefore, there is any competent and substantial evidence to support any of these theories, the judgment must be affirmed, since it will be presumed that the jury found on such...