Kelso v. Edward Rutledge Timber Co.

• Decision Date: 16 July 1928
• Docket Number: 5112
• Citation: 46 Idaho 497,269 P. 94
• Parties: CHARLES E. KELSO and ANDY W. EVERETT, Respondents, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

269 P. 94

46 Idaho 497

CHARLES E. KELSO and ANDY W. EVERETT, Respondents, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Appellant

No. 5112

Supreme Court of Idaho

July 16, 1928

EVIDENCE-CONCLUSIONS-BEST EVIDENCE-RES JUDICATA-RECORD-LOGGING AGREEMENT-CONSIDERATION.

1. In action to recover damages for breach of contract to drive logs, question to plaintiff as to what it would cost to drive logs down creek did not call for conclusions, where witness had testified that he employed crew and got logs out, and his knowledge was gained first hand.

2. Where witness testified to number of men employed, time consumed and wages paid, and stated he was testifying from books, but that he could testify from memory, and testified with certainty and particularity without reference to any record, court did not err in admitting evidence over objection that books were best evidence.

3. Where trial court in former action ruled that matter set up in cross-complaint could not be litigated, except in separate action, issue in cross-complaint was never submitted or passed on by jury, and exclusion of record in former case under plea of res judicata, on ground that records did not show issue was submitted or decided in former case, was proper.

4. In action for breach of contract to drive logs, in which defendant claimed previous agreement whereby plaintiffs agreed to drive logs free in consideration of right to construct dam on defendant's land, court properly refused to submit to jury former agreement, and instructions incident thereto, where defendant failed to establish former agreement as alleged.

5. Where alleged former agreement required plaintiff to drive defendant's logs free in consideration of right to construct dam on defendant's land, new obligations of breaking defendant's rollways, and placing defendant's logs in another creek, constituted sufficient consideration to support defendant's promise to drive logs.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Chas. L. Heitman, Judge.

Action for damages for breach of contract. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents.

Robert H. Elder, for Appellant.

The court took away from the jury defendant's first affirmative defense. In this defense the defendant alleges that the logs which were driven out of Cranberry Creek by Everett and Kelso were driven in consideration of the right to construct and maintain a dam on land belonging to the defendant company. Therefore the defendant contends that there was no consideration for the alleged contract which plaintiffs are attempting to maintain. The court refused to submit this issue to the jury, and, under instructions given to the jury, took the defense away from the jury. (Independent School Dist. No. 6 v. Mittry, 39 Idaho 282, 226 P. 1076; 1 Williston on Contracts, secs. 130, 130A; 1 Page on Contracts, sec. 589.)

Defendant claims that this action was tried in a case instituted in Kootenai county by Edward Rutledge Timber Company against Charles E. Kelso and Andy W. Everett, and that said Charles E. Kelso and Andy W. Everett in that action set up as a defense the cause of action which they are prosecuting in this case, and that in said action judgment was in favor of Edward Rutledge Timber Company and the company pleads said judgment as a bar to this action. The court, by Instruction No. 5, took this defense of the defendant from the consideration of the jury and refused to allow the defendant during the course of the trial to introduce any evidence in support of this defense. (Shields v. Johnson, 12 Idaho 329, 85 P. 972; Joyce v. Murphy Land etc. Co., 35 Idaho 549, 208 P. 241; Lilly v. Menke, 143 Mo 137, 44 S.W. 730; Barton v. Dyer, 38 Idaho 1, 220 P 488.)

The defendant, by assignments Nos. 1 and 2, contends that the court erred in permitting the witness Andy W. Everett to testify orally as to the book accounts of the items of cost when he stated that he was referring to the books for the purpose of giving the evidence. (Marchand v Ronaghan, 9 Idaho 95, 72 P. 731.)

Ezra R. Whitla and W. D. Keeton, for Respondents.

No res adjudicata in this case, as the issues involved were never tried and determined and defendant raising that issue failed to prove that they were and the record conclusively shows the contrary. (Marshall v. Underwood, 38 Idaho 464, 221 P. 1105; Mason v. Ruby, 35 Idaho 156, 204 P. 1071; Jensen v. Berry, 37 Idaho 394, 216 P. 1033; Lower v. Fraelick, 151 Minn. 552, 185 N.W. 940; Clark v. Scoville, 198 N.Y. 279, 91 N.E. 800; Horton v. Goodnough, 184 Cal. 451, 194 P. 34; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214; McPherson v. Swift, 22 S.D. 165, 133 Am. St. 907, 116 N.W. 76; 34 C. J. 1074.)

Everett's testimony regarding accounts was from memory and personal knowledge but had books showing the same. This evidence is admissible and the books were secondary thereto. (22 C. J., p. 985; Cowdery v. McChesney, 124 Cal. 363, 57 P. 221; Schurtz v. Kerkow, 85 Cal. 277, 24 P. 609; Christman v. Pearson, 100 Iowa 634, 69 N.W. 1055; Hyde v. Shank, 93 Mich. 535, 53 N.W. 787; Finseth v. Scherer, 138 Minn. 355, 165 N.W. 124.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

This is an action in damages for alleged breach of contract. In the spring of 1924 respondent-plaintiffs and the defendant, Edward Rutledge Timber Company, each had independently certain logs in both Cranberry and Bussel Creeks, small tributaries of Marble Creek, through which latter stream they expected to transport such logs to the St. Joe River and thence to market. Plaintiffs plead that they and defendant entered into an oral agreement that plaintiffs should during the season of 1924 make the drive of Cranberry Creek, taking out all the logs of both parties therein, and that the defendant should drive all the logs in Bussel Creek, including those of plaintiffs'; that plaintiffs duly performed their part of said agreement but that defendant refused to do its part, compelling plaintiffs to drive their own logs down Bussel Creek as well as defendant's down Cranberry Creek, to their damage in the sum of $ 1,173.95, for which sum they prayed judgment. Defendant answered, denying all liability, and stated that it had agreed to drive all logs which plaintiffs might have placed in Bussel Creek "prior to the time" defendant should make its rear drive out of Bussel into Marble Creek. It was further alleged that on or about April 1, 1922, plaintiffs and defendant entered into an agreement whereby plaintiffs, in consideration of the right to construct a dam on defendant's land, agreed to drive, free of charge to defendant, all logs belonging to defendant out of Cranberry Creek into Marble Creek during the time plaintiffs were operating said dam; that plaintiffs operated said dam in 1924 and that all of defendant's logs driven by plaintiffs that year out of Cranberry Creek were handled in pursuance of said agreement. As a final defense, and as res adjudicata, defendant plead that theretofore, in an action brought by defendant against the plaintiffs for moneys due in the district court of Kootenai county, plaintiffs filed a counterclaim and cross-complaint which defendant, then plaintiff, duly answered; that judgment was thereafter entered upon a verdict rendered in this defendant's favor, from which plaintiffs appealed but later satisfied; that plaintiffs' cause of action in the instant case, having been set out in the said counterclaim and cross-complaint, was fully litigated and decided against plaintiffs in such former action, and that such proceedings and judgment are a bar to the prosecution of this suit. The cause was tried, resulting in a verdict against defendant, which has appealed from the consequent judgment.

Plaintiff Everett, was permitted, over defendant's objection, to answer the question: "What did it cost you to drive your logs out and down Bussel Creek from where they were put in in the year 1924?" This is charged as error as calling for a conclusion of a witness incompetent to testify. The witness had testified that he employed a crew and got the logs out; his knowledge was gained first hand, and his answer based on such knowledge was not a conclusion. Later, while detailing the number of men employed, time consumed and wages paid, the witness was asked by defendant's counsel what he was testifying from. He answered that, as to the amount of time the men worked, he was testifying from books. Objection was immediately made that the books were the best evidence. Whereupon, witness produced the time-book kept, as he ...