Lindstrom v. Hope Lumber Co.

• Decision Date: 05 December 1906
• Citation: 88 P. 92,12 Idaho 714
• Parties: PETER LINDSTROM, Respondent, v. HOPE LUMBER COMPANY, Appellant
• Court: Idaho Supreme Court

88 P. 92

12 Idaho 714

PETER LINDSTROM, Respondent, v. HOPE LUMBER COMPANY, Appellant

Supreme Court of Idaho

December 5, 1906

Syllabus by the Court.

Where the issues joined by the pleadings cover a claim for injury and damages suffered under a given and specific contract and, when the parties come to making their proofs before a referee, they stipulate and agree that " a full and complete accounting of all the matters and things between plaintiff and defendant shall be had and taken" under another and separate contract and transaction, " the same as if it were a part of the complaint," the losing party cannot be heard on appeal to complain of the evidence and findings touching such new issue as being outside of the issues made by the pleadings.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3611.]

Where the respective parties have stipulated and agreed to the appointment of a referee to take testimony and report the same to the court and they make no demand for a jury, they will be deemed by such act to have waived a jury even if the case were one in which they would otherwise be entitled to a jury trial.

[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, § 188.]

Where the record fails to show when the report of a referee was submitted to the court, but does show that the last testimony was taken by him over 18 months prior to the date of filing the report, and that the attorneys for both sides were present at all the hearings before the referee, and the court makes and files his findings and judgment on the same date on which the report is filed, the losing party will not be heard on appeal to complain that he had no time or opportunity to move against the report or any part thereof, or to move to purge the evidence submitted by the report. In such case the losing party is not free from negligence and laches.

Where, by consent of both parties, evidence is taken touching differences not covered by the issues and no objection is made thereto prior to findings and judgment, the pleadings will be treated on appeal as if they had been so amended as to make the issues covered by the proofs.

APPEAL from the District Court of First Judicial District for Kootenai County. Hon. Ralph T. Morgan, Judge.

Action by plaintiff for an injunction and damages. Judgment for plaintiff. Defendant moved for a new trial and the motion was denied. Appeal from the judgment and order. Affirmed.

Costs awarded in favour of respondent.

Edwin McBee, for Appellant.

This is an action in equity to restrain interference by the defendant with plaintiff's contract. The object of the reference, therefore, must have been to enable a report to be made to the court as to the advisability of granting the injunction, and the question of damages would be another consideration and one which would require the introduction of a jury. The rule governing such actions in this state is laid down in the case of Stocker v. Kirtley, 6 Idaho 795, 59 P. 891, as follows: "The complaint states but one cause of action, and the claim for damages is incidental to that. The court should have tried the equitable part of this action, and thereafter, if a jury was demanded to try the issue of damages, submitted that question to a jury." In this case no opportunity was given to demand a jury trial, but immediately on the filing of the report of the referee, findings and judgment were entered for the plaintiff in a sum of $ 1,500 in excess of the amount sued for.

The order of reference was not in accordance with any statutory proceedings; it was not entered upon the agreement of the parties in writing, filed with the clerk, or entered in the minutes as provided in section 4414, Revised Statutes; nor was it by order of the court as provided by section 4415, Revised Statutes. The order of reference only provides that the referee is to report evidence to the court or judge, and does not in any way refer to the fact that it is agreed that a money judgment may be entered on the referee's report.

Chas. L. Heitman, for Respondent.

There is no rule of practice in the courts of equity requiring the intervention of a jury. The court may submit an issue of fact to a jury, but when it does so the verdict is merely advisory and not binding upon the court. And a court of equity having jurisdiction of a case for one purpose will retain jurisdiction of the case for all purposes. (1 Pomeroy's Equity Jurisprudence, secs. 180, 181; Hart v. Brown, 27 N.Y.S. 74, 6 Misc. 238; Hanley v. Watterson, 39 W.Va. 214, 19 S.E. 536; Price v. Oakfield etc. Co., 87 Wis. 536, 48 N.W. 539, 24 L. R. A. 333.)

Under sections 2223, 3237, 3238 and 3243, Code of Civil Procedure, it was competent and proper for the court to render judgment in accordance with the evidence in the case, as made and tried by the parties, and to treat the pleadings as amended for that purpose. It is the rule that where evidence is introduced without objection, the pleading will be considered amended to correspond with the facts proven, and the judgment will be based upon the evidence. (Heater v. Penrod (Neb.), 89 N.W. 762; Enix v. Iowa Cent. R. Co., 114 Iowa 508, 87 N.W. 417; St. Louis etc. R. Co. v. Keller, 10 Kan. App. 480, 62 P. 905; Savings Bank v. Barrett, 126 Cal. 413, 58 P. 914; Sengfelder v. Insurance Co., 5 Wash. 121, 31 P. 428.)

Any variance between pleading and proof must be taken advantage of at the trial, and cannot be considered on appeal. (Pryor v. Worford (Ky.), 54 S.W. 838; Jacobs v. Marks, 183 Ill. 533, 56 N.E. 154; Choquette v. Southerland R. Co., 152 Mo. 257, 53 S.W. 897.)

No variance between the pleadings and proof is material unless the adverse party has been actually misled to his prejudice, in maintaining his action or defense upon the merits. (Wilcox Lumber Co. v. Ritteman, 88 Minn. 18, 92 N.W. 472; People's Nat. Bank v. Miles, 65 Kan. 122, 69 P. 164.)

An amendment of pleadings will be implied where evidence is introduced without objection, and the case tried as if the proof as made was covered by the pleadings. (1 Ency. of Pl. & Pr. 641.)

Appellant was not in any way injured by the introduction of the evidence in this case on account of the state of the pleadings, and the rule is that the party to avail of any such supposed injury must present the matter at the trial, and show that he would be injured by the introduction of proof, and if he does not do so, then he never can. (Hewitt v. Maize, 5 Idaho 633, 51 P. 607; Hawkins v. Pocatello Water Co., 3 Idaho 776, 35 P. 711; Aulbach v. Dahler, 4 Idaho 322.)

AILSHIE, J., STOCKSLAGER, C. J. Stockslager, C. J., Sullivan, J., and Ailshie, J., concurring.

OPINION

AILSHIE, J.

This action was commenced in the early part of 1902 to secure an injunction and for damages in the sum of $ 2,000. The defendant demurred and the demurrer was overruled; it thereafter answered, and by agreement of counsel for the respective parties the case was referred to a referce to take the evidence and report to the court. The referce commenced to take testimony on the fourteenth day of June, 1902, and evidence appears to have been taken in Spokane, Washington as late as the seventh day of June, 1904. It was not filed in court, however, until the second day of February, 1906. On the date on which the referee's report was filed, the district judge made and filed his findings of fact and conclusions of law, and ordered judgment in favor of the plaintiff for the sum of $ 3,500, and thereupon entered judgment accordingly. The defendant moved for a new trial and appealed from the judgment and order denying its motion. It appears that the plaintiff, Lindstrom, had two logging contracts with the appellant, the Hope Lumber Company, one known as the Kootenai contract and the other as the Pack river contract. The Kootenai contract was entered into on the twenty-fourth day of October, 1901, and by its terms Lindstrom agreed to cut, skid and bank in Kootenai slough all the white pine, fir and tamarack saw timber growing on a certain tract of land at a fixed price per thousand feet. Lindstrom began by building roads and laying in supplies and material for carrying out his contract, and during the meanwhile was purchasing considerable of his supplies from Butler & Culver of Sand Point. At the end of each month he paid his bill to Butler & Culver by check issued by the Hope Lumber Company. The last payment made was about the first of November. When he failed to make his payments, one of the firm of Butler & Culver interviewed the president of the Lumber Company, Mr. Field. Field endeavored to get Butler & Culver to carry the account, but at the same time told them, that "Lindstrom was running behind, that he did not know whether he was going to get the logs out or not, and that perhaps they would have to take charge of the camp themselves." He also informed them that the company was "afraid Pete was coming out behind," etc. Some two or three such interviews took place between Mr. Butler of the Butler & Culver Company and Mr. Field of the Hope Lumber Company, and the result was that on the twenty-seventh day of January, 1902, Butler & Culver sued Lindstrom for about $ 2,325, and caused an attachment to issue and be levied upon his property including supplies, bunkhouse, tools, horses, and one million one hundred thousand feet of logs. This property was taken possession of by the sheriff, and immediately thereafter the Hope Lumber Company instituted an action in replevin against the sheriff claiming all this property as belonging to the company. They gave a replevin bond and took possession of the property. The respondent Lindstrom thereupon commenced this present action against the Hope Lumber Company, charging that all the property replevied belonged...