McDowell v. Geokan, 7620

• Decision Date: 28 January 1953
• Docket Number: No. 7620,7620
• Parties: McDOWELL et ux. v. GEOKAN et ux.
• Court: Idaho Supreme Court

Page 1056

252 P.2d 1056

73 Idaho 430

McDOWELL et ux. v. GEOKAN et ux.

No. 7620.

Supreme Court of Idaho.

Jan. 28, 1953.

Donart & Donart, Weiser, C. Ben Martin, Boise, for appellants.

Hawley & Marcus, Boise, R. H. Remaklus, Cascade, for respondents.

GIVENS, Justice.

May 24, 1947, respondents leased to appellants, by written contract, some 326.78 acres in Townships 22 North, Ranges 7 and 8 East of the Boise Meridian, on the South Fork of Salmon River, for five years. Respondents were to furnish 100 tons of hay, 100 head of cattle, 12 horses and four mules and the farming implements and equipment on the property and pay $1,000 annually towards operation costs. Appellants were to farm the property in the farmerlike, neighborhood practice, surrender possession at the termination of the lease period--wear and tear excepted--furnish 150 head of cattle and not sublet, and in case of default, pay attorney's fees.

Respondents and appellants were to be equally liable for taxes and seed; crops and cattle to be equally divided at the termination of the lease.

Respondents had a permit from the Forest Service to graze a certain number of cattle on the Payette National Forest, within the confines of which the real property is located. The road to the neighborhood of the ranch, a sparsely settled section in game country, is generally closed to vehicular traffic by snow on the intervening seven or eight thousand-foot summit from November to June.

Respondents' permit was not mentioned in the lease. After appellants brought their cattle from the Juniper Mountains in the breaks of the Owyhee River by trail, truck and train to the ranch about July 7, the Forest Service officials notified both parties the cattle could not stay, but had to be taken off the reserve because they did not belong to respondents, and gave temporary permission to wait until the next spring to take them out.

Respondents evidently took repossession of the ranch about April 5, 1948, having brought this suit against appellants March 23, for repossession and damages, in the original complaint, of $9,250 and $1500 attorney's fees and in the nominated amended complaint, for an additional $4,860 for failure to properly farm and care for the place and respondents' cattle, and consequent waste.

Appellants' amended answer denied any breach or failure to comply with the lease, and alleged respondents had induced appellants to enter into the lease by false representations that appellants' cattle could be grazed in the Forest reserve under respondents' permit, alleging respondents knew this could not be done when the lease was executed, but had not so informed appellants; sought damages for the consequent expenses in bringing their cattle in to the ranch and expense and loss of cows and calves from having to take them out in the early spring in inclement weather when the cows were calving, in the amount of $12,313.09.

The jury returned a verdict in favor of respondents for $3,000.

By stipulation, the amended answer and cross-complaint were considered denied. Accordingly, respondents countered appellants' contention of false representations by asserting appellants knew they would have to transfer their cattle to respondents and had so agreed prior to the execution of the lease, though such agreement was not in the lease.

On the appeal from the judgment, appellants assign four errors, which we do not take up in the order presented in the brief, the first considered by us being:

'II.

'The Court erred in overruling the objection of the defendants to the admission of oral evidence to the effect that before the lease was signed the plaintiffs informed the defendants that the defendants would be required to execute in favor of the plaintiffs a Bill of Sale of all of their cattle in that the oral evidence so introduced varied the terms of the written lease and required the defendants not only to give a Bill of Sale of their cattle to the plaintiffs but to join in the perpetration of a fraud against the Forest Service;'

The testimony complained of is as follows:

'A. The next time I met Geokans was between the 15th and 20th of May. They came in there with this lease and wanted us to sign it. I went ahead and explained to Geokans fully that before he could bring in the cattle and run them on the ranch he would have to make preparations and turn in a bill of sale of those cattle to the Forest; and Mr. Parks, a ranger there, told me he would have to do that, and also Mr. Hague--it was all right, he did not have any objection----

'By Mr. Donart: I object to the answer as an attempt to vary the terms of a written lease.

'By the Court: Objection overruled.

'Q. Just proceed. A. And we thought everything was all right; that the cattle were going to be split fifty-fifty when the calves were sold and at the end of five years the split would be the same. He says it did not make any difference to him; he would still run the ranch and he would provide a clear title as soon as he could from Herbert Martin on the cattle and before he brought them in.

'Q. When did that conversation take place? A. Between May 15th and 20th.

'Q. Was that prior to the execution of the lease? A. Yes. He agreed to that, or we would never have signed the lease.

'By Mr. Donart: We move to strike after the word yes as not responsive.

'By the Court: It may be stricken.' McDowell. Dir.

Incidentally, conceding this evidence was inadmissible as varying the lease, it was, nevertheless, admissible as showing that appellants knew of the requirement that respondents must own all the cattle to be grazed under their permit, and hence, respondents were not chargeable with the false representation alleged by appellants. Evidence clearly admissible for one purpose (herein, to show no false representations made) is not rendered inadmissible because not competent on another issue. Absent a requested instruction to limit such evidence (and there was none herein) there was no error in overruling appellants' objections to the extent they were overruled. Town of Meeker v. Fairfield, 25 Colo.App. 187, 136 P. 471; Chicago Lumber Co. v. Cox, 94 Kan. 563, 147 P. 67; Wilcox v. Bear, 140 Wash. 39, 248 P. 58.

'This evidence, moreover, was expressly not offered for the purpose of varying the terms of the written warehouse receipt, but went to the issue of whether the receipt was the only and entire contract between the parties. It was also clearly competent as tending to show knowledge on the part of defendant as to the value of the property to be stored with it. It is well settled, of course, that 'if evidence is admissible for any purpose, it must be received, even though it may be highly improper for another purpose.' Hatfield v. Levy Bros., 18 Cal.2d 798, 809, 117 P.2d 841, 847.' George v. Bekins Van & Storage Co., Cal.App., 196 P.2d 637 at page 650.

64 C.J. 132, #151 n. 25(a).

Furthermore, there was later evidence of similar import to which there was no objection:

'Q. Did you later sign the lease? A. Yes, on May 24th.

'Q. Was there any discussion at that time between yourself and the Geokans? A. In the meantime my husband went into the Forest Service and told them----

'Q. Were you present there? A. No, sir.

'Q. Just confine your testimony to what you know. A. Well, they came in; and he told me he had been to the Forest Service and they could not bring the cattle in unless they belonged to us.

'Q. What was the conversation and who were present? A. Mr. and Mrs. Geokan and Mr. McDowell and myself.

'Q. What was the conversation? A. Well, we told them we would have to have a bills of sale of the cattle like the Forest people said we would have to have. They said that was just fine; that it would be alright; that the way the contract read they would be there 5 years and they would get one half of everything sold off the ranch and at the end of 5 years they would get one half and it would be the same thing. They said 'Go ahead and sign the lease and we will go right out and fix a bill of sale'.

'Q. Who said that? A. Mrs. Geokan. They both said that.' Mrs. McDowell, Dir.

This rendered the ruling innocuous. Hartley v. Bohrer, 52 Idaho 72 at pages 78-80, 11 P.2d 616; Naccarato v. Village of Priest River, 68 Idaho 368 at page 372, 195 P.2d 370.

Second, the court erred in sustaining these objections in the examination of Hague, Forest Supervisor:

'Q. Does your forest or the Forest Service regulations permit the owner of a permit, livestock and land to lease to someone else and operate livestock on the forest under the terms where the lessee gets part of the increase?

'By Mr. Hawley: Objected to as not the best evidence of testing the regulation; and a copy of the regulation would be the best evidence.

'By the Court: Objection sustained.

'Q. Do you know of your own knowledge what is the practise of the Payette National Forest in that respect?

'By Mr. Hawley: We object to that on the ground it is not the best evidence.

'By the Court: Objection sustained.

'By Mr. Donart: The defendants desire to make an offer of proof.

'By the Court: Very well. The jury will be excused from the courtroom until called.

'By the Court: The jury having retired, you may proceed.

'By Mr. Donart: We offer to prove by this witness that it in the practise in the Payette National Forest, and that such was the practise during the entire season of 1947, to refuse to permit a land and livestock owner who is a permittee on the forest to lease his land and livestock to any third party by the terms of which lease the third party took any part of the increase of said livestock in return for the operation of said stock; and thereafter to operate said livestock on the Payette National Forest.

'By Mr. Hawley: We object to the offer upon the grounds and reasons: That it is incompetent, irrelevant and immaterial; second, that it is not the best evidence, the best evidence being the rules and regulations under which the forestry matters are administered; third, it...