McCarty v. Sauer
| Decision Date | 25 March 1943 |
| Docket Number | 7055 |
| Citation | 136 P.2d 742,64 Idaho 748 |
| Parties | E. G. McCARTY and DeESTA McCARTY, Appellants, v. WILLIAM SAUER and LEONE SAUER, Respondents |
| Court | Idaho Supreme Court |
Rehearing denied May 8, 1943.
PUBLIC LANDS-CONTRACT OF SALE-SPECIFIC PERFORMANCE-PAYMENT APPLICATION OF-EVIDENCE-TRIAL-APPEAL AND ERROR.
1. A debtor who owes more than one debt to the same creditor and who makes a payment to him, generally has the right to elect upon which of his obligations his payment shall be applied.
2. Where a debtor who owes more than one debt to the same creditor makes a payment to creditor without electing as to which obligation the payment should be applied, the creditor may generally apply the payment toward the extinguishment of any obligation of debtor.
3. A debtor who owes more than one debt to the same creditor and has the right to elect upon which of his obligations his payment shall be applied must make such direction at or before the time of payment, or before the creditor acting on debtor's omission has done so.
4. Where a debtor who owes more than one debt to the same creditor makes a payment with money derived from a particular source or fund, the payment must be applied to the relief of the source or fund from which it was derived if the source of the funds is known to the creditor.
5. Where a creditor and debtor have made an agreement that payments made by debtor to creditor with money derived from a particular source shall be applied to the payment of a particular debt, the payments must be so applied by creditor.
6. Where contract for the sale of state land sale certificates provided that purchase price was to be paid by delivery of one- half of crops grown upon premises each year until fully paid, and seller admitted receipt of payments from crop proceeds in excess of contract price purchasers were entitled to assignment of certificates, even though purchasers were indebted to sellers on other debts to which crop payments had been applied, since vendors were duty bound to apply such payments on the contract.
7. Trial court's findings must be liberally construed in support of the judgment appealed from.
8. In action for specific performance of contract to sell state land sale certificates, where court found that amounts paid to vendor exceeded contract price, court was not required to make specific finding as to how much of the payments made were applied to other indebtedness owing to vendors by purchasers, since findings should be of ultimate facts and not of probative facts.
9. It is unnecessary to make a specific finding on a given issue where the findings of the court are inconsistent with a finding on that particular issue which would have been favorable to the complaining party.
10. In action for specific performance of contract to sell state land sale certificates wherein vendors filed counterclaim and sought an accounting as to other indebtedness owing by purchasers to vendors, trial court's findings that a certain note and mortgage given to vendors by purchasers had not been paid and was not a proper credit on the general account would not be disturbed where evidence was in conflict.
11. Where trial court sitting as a court of equity makes findings of fact based upon conflicting evidence and there is evidence to support both theories and from which reasonable men might draw different conclusions, such findings will not be disturbed on appeal.
12. Permitting mortgagee to testify that a note and mortgage which had been returned to mortgagor had not been paid was not error, since the returned note and mortgage constituted only "receipts," and oral evidence to explain them was properly admissible.
13. Simple receipts are only "prima facie evidence" of the truth of the statements recited therein, and oral evidence is admissible to show that the money receipted for was not in fact paid.
14. In action for specific performance of contract to sell state land sale certificates, overruling of plaintiffs' demurrer to defendants' answer was not prejudicial to plaintiffs, where defendants furnished bill of particulars setting forth amount of money defendants claimed had been paid to them.
15. In action for specific performance of contract to sell state land sale certificates, where on general accounting court found that a balance was due to defendants, it was unnecessary to find specifically the amount still due the state, where under the contract such sums were payable by plaintiffs.
16. In action for specific performance of contract to sell state land sale certificates, wherein defendants filed counterclaim seeking to recover on other indebtedness owing by plaintiffs to defendants, trial court's finding on conflicting evidence that plaintiffs were indebted to defendants in a fixed amount was not error.
17. Where the evidence is conflicting in an equity suit, the decision of the trial court will be affirmed where there is substantial evidence to support it.
Rehearing denied May 8, 1943.
Appeal from the District Court of the Ninth Judicial District for Bonneville County. Hon. T. Bailey Lee, presiding judge.
Action for specific performance of contract to convey state land sale certificates. From a judgment in favor of defendants plaintiffs appeal.
Affirmed in part. Reversed in part and remanded with instructions.
Reversed and remanded. No costs awarded.
A. A. Merrill, L. H. Merrill, and Merrill & Merrill for appellants.
"The debtor or payer may direct the application of the payments on a contract." (Shull v. Lawrence, 32 Idaho 527; Smith v. Thomas, 42 Idaho 375, 245 P. 399. 30 Cyc. 1237; Powell v. State, 4 So. 719.)
It is the duty of the court to make findings upon each and every material issue arising upon the pleading. (Berlin Machine Works v. Dehlban, 29 Idaho 494; Reno v. Richard, 32 Idaho 1, 178 P. 81.)
Where the complaint sets up several distinct causes of action there should be a separate findings upon each cause. (Goodell v. Poc.-Shenon Mining Co., 36 Idaho 427, 212 P. 342.)
Where a defendant files a separate answer, setting up affirmative matter constituting a defense, it is error for a trial court to fail to make findings on the issues thus raised, where a finding favorable to the defendant on the issue presented would defeat the plaintiff's right of recoverq.
C. A. Bandel for respondents.
The trial court found no conflicting evidence that plaintiffs had made no demand or request as to how or to what indebtedness said payments were to be applied and that defendants applied payments upon indebtedness of plaintiffs as they were legally entitled to do and therefore defendants had the right to apply such payments as they saw fit. The direction of debtor must be made prior to payments and prior to entry of credits. .)
It is well settled that simple receipts are only prima facie evidence of the truth of the statements recited therein and that oral evidence is admissible to show that the money receipted for was not in fact paid. Releases contractual in their nature are governed by the rule excluding parole evidence, but those not contractual and which are in substance mere receipts, are not within the rule, but are subject to the law governing receipts. The words in the marginal release (Fully paid, satisfied and discharged) importing payment of the indebtedness secured by the mortgage in effect constituted a receipt and nothing more. This holding is supported by the weight of authority. (Berryman v. Dore, 43 Idaho 327; Thompson v. Layman, 42 N.W. 1061 (Minn.); Thompson v. Avery, 39 P. 829 (Utah); Beal v. Stevens, 14 P. 186 (Calif.); Soule v. Soule, 32 N.E. 663 (Mass.)
DUNLAP, J. Ailshie and Givens, JJ., and Sutton, D.J., concur. Budge, J., sat at the hearing in this case, but did not participate in this opinion. Holder, C. J., did not sit at the hearing or participate in the opinion.
--Appellants, purchasers under the contract herein referred to, sue on the first cause of action for specific performance of the contract; for the delivery and assignment of certain land sale certificates, and that respondents be required to pay to the state the indebtedness owed it thereon; that it be deemed respondents have been fully paid the amount due them for their equity on the contract for the purchase thereof. On the second cause of action for decree of the court requiring respondents to pay the state certain principal and interest alleged to be due it on the certificates, and failing so to do, that they have judgment against respondents for such sum as may be justly due them.
Respondents, vendors in the contract, filed cross-complaint in which they ask judgment against appellants for the sum they claimed due them as the balance on the purchase price of the certificates; for payments made by them after the date of the contract of sale to the state on the certificates; for taxes advanced and paid, and for advances of cash made by them to and for the benefit of appellants. They also ask for an accounting covering the matters involved in the transactions above referred to.
A jury was called to act in an advisory capacity, and on certain interrogatories propounded found in effect the parties had agreed the First Security Bank of Idaho Falls should be the escrow holder of the sales contract and state land sales certificates therein enumerated; that appellants had not requested respondents to place said papers in escrow, and respondent William Sauer had never advised appellant E. G McCarty the contract had been paid out in full and that he would deliver all...
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