Lloyd v. Anderson

• Decision Date: 02 June 1924
• Citation: Lloyd v. Anderson, 39 Idaho 314, 227 P. 32 (Idaho 1924)
• Parties: C. E. LLOYD, Respondent, v. PARLEY ANDERSON, J. P. ANDERSON, CHESTER ANDERSON and A. S. ANDERSON, Appellants
• Court: Idaho Supreme Court

227 P. 32

39 Idaho 314

C. E. LLOYD, Respondent, v. PARLEY ANDERSON, J. P. ANDERSON, CHESTER ANDERSON and A. S. ANDERSON, Appellants

Supreme Court of Idaho

June 2, 1924

APPEAL AND ERROR-REVIEW-INSTRUCTIONS-VENDOR AND PURCHASER-CONTRACT FOR SALE OF REAL PROPERTY-BREACH BY VENDEE-RECOVERY OF DEFERRED PAYMENTS-RESCISSION AGREEMENT.

1. The giving of an instruction upon a question not made an issue by the pleadings and concerning which there is no substantial evidence, together with the failure to give an instruction upon material issues in support of which substantial evidence is admitted, constitutes reversible error.

2. A vendor in an executory contract for the sale of land, who retakes possession of the property because of a breach of the contract for a failure to make the payments therein provided for, cannot thereafter recover on a note given for a deferred payment, in the absence of evidence that he repossessed the property in pursuance of an agreement that the note would be paid.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action on promissory note. Judgment for plaintiff. Reversed.

Judgment reversed. Costs to appellants.

Peterson & Coffin and C. H. Darling, for Appellant.

The verdict and the judgment are contrary to the law and the evidence. (Ward v. Warren, 44 Ore. 102, 74 P. 482; Roney v. Halvorsen Co., 29 N.D. 13, 149 N.W. 688; Croup v. Humboldt Quartz & Placer Min. Co., 87 Wash 248, 151 P. 493; Mays v. Sanders (Tex. Civ.), 36 S.W. 108; Steiner v. Baker, 111 Ala. 374, 19 So 976; Waite v. Stanley, 88 Vt. 407, 92 A. 633, L. R A. 1916C, 886, and note p. 897; Kunz v. Whitney, 167 Wis. 446, 167 N.W. 747; Security State Bank v. Krach, 36 N.D. 115, 161 N.W. 568.)

Budge & Merrill, for Respondent.

Where there is some evidence to support the verdict of the jury, the judgment will not be reversed. (Lott v. Oregon Short Line, 23 Idaho 324, 130 P. 88; Cox v. Northwestern Stage Co., 1 Idaho 376.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

WM. E. LEE, J.

--On April 17, 1920, respondent and Parley and Ricy Anderson entered into a contract in writing in which respondent agreed to sell and the Andersons agreed to purchase certain real property in Grace for $ 27,000. The payment of $ 500 was admitted by the contract, which provided for a payment of $ 1,500 on May 1, 1920, $ 200 on the first day of each month thereafter, $ 1,000 on November 15, 1920, and $ 1,000 on November 15th of each year thereafter, until the entire purchase price was paid. It was further provided that in case the Andersons failed to comply with the terms of the contract, respondent could "take possession of the said property and hold all payments made by second parties as rental and liquidated damages," or "declare the entire sum due and payable and proceed to collect the entire remaining payments." The contract contained also the following:

" . . . . Second parties, at any time that they are requested by first parties, will execute and deliver to first parties their promissory notes for any or all deferred payments."

In June, 1920, Parley and Ricy Anderson, at the request of respondent, delivered to him their certain promissory note in the sum of $ 1,700. Under date of August 10, 1920, the Andersons delivered to respondent their check in the sum of $ 1,934, which included payment of the note. This check was not paid at the bank because of lack of funds, and on October 5, 1920, Parley Anderson, one of the parties to the contract, together with other persons, delivered to respondent his note in the sum of $ 1,973, and respondent delivered to appellants the following memorandum:

"Oct. 5, 20.

"Re'd of J. P. Anderson and Sons note for $ 1973 in return or renewal of note signed by Anderson Bros. in June for $ 1900.

"C. E. LLOYD and J. A. SMOOT."

On December 21, 1920, respondent commenced his action to recover from appellants on the note given in October. Appellants, in their answer, admitted the execution and delivery of the note, but, as an affirmative defense, they pleaded the contract for the sale of the land, and alleged that the note sued on was delivered to respondent in conformity with the provision of the contract that appellants would execute and deliver their promissory notes for any or all deferred payments upon the request of respondent. They further alleged the provision of the contract hereinbefore quoted, under which two remedies were available to respondent in the event of failure to pay the installments of the purchase price, and they alleged that respondent elected to retake possession of the premises, and that they were, therefore, not liable for the payment of the note or for any other deferred payments. The cause was tried to the court and a jury. The verdict was for respondent, and judgment was made and entered in his favor. The appeal is from the judgment.

The court refused to give certain instructions requested by appellants, and gave an instruction to the effect that the jury should return a verdict for respondent, irrespective of what the note was taken for, if the property was taken back by respondent in pursuance of an agreement between the parties that the note would be paid. The refusal to give the requested instructions and the giving of the foregoing instruction are assigned as error.

Appellants make a number of objections to the instruction referred to. They say that any agreement to pay the note at the time the property was taken back would be nudum pactum and could not be enforced; that the instruction was further erroneous for the reason that there was no allegation of any agreement at the time the premises were taken back that the note would be paid; and that there was no evidence of such an agreement. Appellants do not cite any authorities in support of, nor do they argue, the first two of their objections. The complaint did not allege any such agreement, and if there is no evidence of the agreement, it was error for the court to give the instruction in question. (Smith v. Graham, 30 Idaho 132, 164 P. 354; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Henry v. Jones, 1 Idaho 48. See, also, 14 R. C. L. 784, sec. 50.) Respondent had introduced his note in evidence. Appellants had produced evidence to the effect that the note in question was given as a renewal of another note that had been given at the request of respondent for deferred payments, and that respondent had repossessed the premises. In his rebuttal, respo...