McConnon & Co. v. Hodge

• Decision Date: 15 October 1914
• Citation: 143 P. 522,26 Idaho 376
• Parties: MCCONNON & CO., a Corporation, Appellant, v. G. R. HODGE et al., Respondents
• Court: Idaho Supreme Court

143 P. 522

26 Idaho 376

MCCONNON & CO., a Corporation, Appellant, v. G. R. HODGE et al., Respondents

Supreme Court of Idaho

October 15, 1914

VERDICT-INSUFFICIENCY OF EVIDENCE.

1. The evidence held not sufficient to sustain the verdict.

APPEAL from the District Court of the Second Judicial District for Latah County. Hon. Edgar C. Steele, Judge.

Action to recover for goods, wares and merchandise. Judgment for defendants. Reversed.

Judgment reversed and a new trial granted. Costs awarded to appellant.

Wm. E Lee, for Appellant, cites no authorities.

William M. Morgan, for Respondents.

It is the universal rule that a contract may be discharged by agreement between the parties. (9 Cyc. 593.)

SULLIVAN C. J. Truitt, J., concurs.

OPINION

SULLIVAN, C. J.

This is an action brought to recover the value of certain goods alleged to have been sold to the respondent Hodge, Hughes and Clark, being sureties for the payment of the price of said goods.

The cause was tried by the court with a jury and a verdict rendered in favor of the defendant Hodge for the sum of $ 94.72 and costs, and in favor of Hughes and Clark for their costs incurred in the trial of the case. The appeal is from the judgment and is based on the insufficiency of the evidence to sustain the verdict.

It appears from the record that the appellant corporation is engaged in the manufacture of spices, flavoring extracts, etc.; that the sale of such products is made to individuals at wholesale prices, and the individuals sell and dispose of the articles in territories assigned to them.

On or about October 12, 1911, the respondent Hodge, desiring to purchase certain goods from the appellant, entered into a written contract with the appellant, the respondents Clark and Hughes signing said contract as guarantors, to the effect that Hodge would pay for the goods purchased. After said contract was signed and delivered, the appellant shipped certain goods to respondent Hodge on his order and he made a number of payments on said goods prior to the 29th of April, 1912, on which date the appellant was notified by Hodge's wife that Hodge had left the country and was not attending to business.

On May 15, 1912, one Norrup, an employee of appellant, visited Moscow for the purpose of trying to adjust or put upon a business basis the business of said Hodge. The record shows that he tried to adjust matters and in doing so an offer was made to sell the business to one Rush. The plan was to have Hodge turn over the remainder of the goods he held and also the accounts still due for goods, to Rush, who was then to enter into a contract with the appellant, and guarantor Clark was to sign the contract as guarantor for Rush. Norrup, Hodge and Rush invoiced the goods and accounts and the goods were turned over to Norrup for Rush, but when the matter was presented again to Clark, he refused to sign as guarantor for Rush. Thereupon the goods were turned back to Hodge, who continued to make certain sales from the goods; but Hodge was not conducting the business satisfactorily to appellant, and appellant demanded payment of the balance due from Hodge and his guarantors. Payment was refused and this action was brought in April, 1913.

The respondents pleaded a counterclaim, alleging that Hodge and Norrup effected a settlement in which Norrup agreed to pay Hodge $ 105 for his interest in said goods. Upon the issues thus made the case was tried before the court with a jury and a general verdict was rendered in favor of the respondents, including a judgment in favor of Hodge in the sum of $ 94.72. The respondents' contention was that there had been a settlement between Hodge and Norrup, whereby the guarantors had been released and the appellant had agreed to pay plaintiff $ 105.

It appears from the record that Rush had been recommended by Hodge as an agent or salesman for the appellant, and he had discussed with Clark and Hodge the matter of taking over Hodge's business and the balance of the goods remaining in his hands. It also appears that the respondent Clark and the appellant were not satisfied with the action of Hodge, and Clark was anxious to get the goods into the hands of some person who would attend to the business. Certain negotiations were carried on between Rush, Norrup, Hodge and Clark which the respondents insist constituted a settlement between appellant and Hodge.

On the trial Hodge testified on his direct examination that he sold his interest in said goods for $ 60 to the appellant, through Norrup, its agent; that thereupon they proceeded to invoice the goods, and Hodge testified that when he told his wife what he was getting, "she put up a kick" and said he was not getting enough, and thereupon Norrup agreed to pay the freight on the goods "on top of the $ 60," and that the freight agreed upon was $ 35.00. He...