Milwaukee Land Co. v. Bogle

• Decision Date: 08 July 1939
• Docket Number: 6621
• Parties: MILWAUKEE LAND COMPANY, a Corporation, Respondent, v. LAMBERT BOGLE, Appellant
• Court: Idaho Supreme Court

92 P.2d 1065

60 Idaho 451

MILWAUKEE LAND COMPANY, a Corporation, Respondent, v. LAMBERT BOGLE, Appellant

No. 6621

Supreme Court of Idaho

July 8, 1939

BILLS AND NOTES-PLEADING-VARIANCE-AMENDMENT OF PLEADING-AGENCY-AUTHORITY OF AGENT-QUESTION FOR JURY.

1. A "variance" between allegation and proof is not "material," unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits.

2. In action on notes representing part of purchase price of timber, amendment of answer to conform to proof that contract under which notes were given had been terminated by oral agreement was improperly refused, in absence of substantial variance, surprise or prejudice. (I. C. A., sec. 5-902.)

3. A provision in contract for sale of timber permitting vendor to exercise right to declare a forfeiture for breach by service of written notice on vendees did not preclude vendee from asserting termination by oral agreement as defense to action on purchase-money notes, though no written notice of forfeiture was given vendee, since provision was for vendee's protection and could be waived by him.

4. In action on notes representing part of purchase price of timber, whether representative of vendor was authorized to represent vendor, in making adjustment and terminating the contract as to such timber as was not then cut, was for the jury.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. Ed. S. Elder, Judge.

Action on promissory notes. Judgment for plaintiff. Defendant appeals. Reversed and new trial ordered.

Judgment reversed and a new trial granted. Costs awarded in favor of appellant.

Carl M Buell, N. D. Wernette and Edward M. Connelly, for Appellant.

In the cases of Mode, Ltd., v. Myers, 30 Idaho 159, 164 P 91, Rankin v. Caldwell, 15 Idaho 625, 99 P. 108 Pennsylvania-Coeur d'Alene Min. Co. v. Gallagher, 19 Idaho 101, 112 P. 1044, Mantle v. Jack Waite Min. Co., 24 Idaho 613, 135 P. 854, 136 P. 1130, and Havlick v. Davidson et al., 15 Idaho 787, 100 P. 91, this court found that there was no abuse of discretion in allowing an amendment to the pleadings during the course of the trial. The above are only a few of the many cases decided by this court which uphold the trial court's granting of motions to amend pleadings to conform to the proof so that in the last analysis substantial justice will have been done.

Wm. D. Keeton, for Respondent.

Amendments and pleadings are discretionary with the trial court. (Fralick v. Mercer, 27 Idaho 360, 148 P. 906; Lowe v. Long, 5 Idaho 122, 47 P. 93; Phenix Ins. Co. v. Stocks, 149 Ill. 319, 36 N.E. 408.)

Interest in land can only be transferred by an agent authorized in writing. (Secs. 16-503, 54-101, I. C. A.; Thompson v. Burns, 15 Idaho 572, 99 P. 111; Milwaukee Land Co. v. Poe, 27 F.2d 625.)

AILSHIE, C. J. Budge, Givens and Holden, JJ., concur. Morgan, J., did not participate in the decision.

OPINION

AILSHIE, C. J.

--August 22, 1933, respondent, Milwaukee Land Company, a corporation, entered into a contract with appellant, Lambert Bogle, and William Sullivan, a co-partnership, whereby the corporation sold to the co-partnership, all the merchantable white pine and yellow pine timber and all the cedar poles on 678 acres of land in Benewah and Shoshone counties for $ 27,497.50. $ 5,500 of the purchase price was paid in cash and Bogle and Sullivan, in payment of the balance thereof, executed and delivered to respondent four promissory notes dated August 22, 1933, each bearing interest at 6 per cent per annum, as follows: a note for $ 7,000 payable on or before September 22, 1933; a note for $ 7,000 payable on or before October 22, 1933; a note for $ 7,000 payable on or before November 22, 1933; a note for $ 997.50 payable on or before December 22, 1933. September 9, 1937, the note for $ 997.50 and $ 2,318.68, balance of the principal of the note which became due November 22, 1933, together with interest on both amounts from March 26, 1936, were unpaid and respondent commenced this action against appellant and Sullivan to recover the money due thereon. Service of summons could not be made on Sullivan within the state and no judgment was taken against him.

Bogle answered the complaint and thereafter filed two successive amended answers, and the case went to trial on the issues framed by the complaint and second amended answer. Bogle admitted the execution of the notes in which he obligated himself to pay the sums of money therein specified, together with interest thereon, and that he had made payments as in the complaint alleged, but denied there was a balance due on the indebtedness. As an affirmative defense, in his second amended answer, Bogle alleged in part as follows:

That he "fully performed in all respects all of the provisions, terms and obligations imposed upon him by virtue of said contract, up to and including the spring of 1935, when, owing to unusual weather conditions, consisting of floods, prolonged rains, and extremely high water, it was temporarily impossible for said defendant to continue his logging operations upon said lands. That at that time the said plaintiff, acting by and through its lawfully appointed, qualified agent, to-wit: Arthur Douglas, availed itself of certain rights which it claimed existed in paragraph 14 of said contract herein designated as Exhibit A, and did through said agent, to-wit: Arthur Douglas, orally declare a forfeiture of said contract, and did orally inform this defendant that said contract was no longer in force and effect, and did orally instruct this defendant, Lambert Bogle, to break camp and leave the lands described in said contract designated herein as Exhibit A, and upon which this defendant had been conducting logging operations, and that defendant agreed to and acquiesced in the request of said plaintiff, as expressed through its agent, Arthur Douglas, . . . . That the said plaintiff, in availing itself of its claimed rights under paragraph 14 of said contract expressed in Exhibit A hereto attached, did revest in itself the title to 1,400,000 feet of yellow pine standing timber, which it had owned at the time it entered into the contract with this defendant, . . . . That the value of said 1,400,000 feet of said yellow pine timber at said time, to-wit: in the spring of 1936, was $ 4.00 per thousand feet, or $ 5,600.00.

"That while this defendant acquiesced in and agreed to the termination of said contract, he had not desired to do so, but was forced to do so by coercion and intimidation of the said Arthur Douglas, who, in taking advantage of the unusual flood and weather conditions then prevailing in the locality in which defendant was logging and in which the land described herein is situated, stated to defendant that he would insist upon strict compliance with the contract, even though floods, high water, washed-out roads and other weather conditions constituted a bar to the continuance of logging operations at said time."

He alleged that Sullivan, for valuable consideration, had sold and assigned his interest in the contract and proceeds therefrom to Bogle, and then set out the contract as an exhibit to and part of his answer. The contract recites that vendor "does give, grant, bargain and sell unto the said Vendees all of the merchantable White Pine, Yellow Pine timber and all of the Cedar Poles, standing, lying and being on the following described land . . . . subject to the following limitations, reservations, conditions, and upon the following terms . . . ."

Paragraph 11 of the contract reads as follows:

"It is further stipulated and agreed by the said Vendees that in the event the Vendor shall, at any time or times determine that the value of the White Pine and Yellow Pine timber and the Cedar Poles remaining uncut on said lands is less than the amount of the purchase price remaining unpaid, it may notify the Vendees in writing of such determination, and require the Vendees to pay unto the Vendor such sum of money, to be applied upon said purchase price notes, as the Vendor may deem necessary, to the end that the value of the White Pine and Yellow Pine timber and the Cedar Poles remaining uncut on said lands shall be not less than the amount of the purchase price remaining unpaid; and the Vendees shall, and hereby agree that they will, immediately upon the receipt of such notice, pay unto the Vendor the sum of money so demanded, which payment shall be applied as a credit upon the said purchase price notes; Provided, that the Vendees may, in lieu of making such payment, immediately cease cutting and removing said timber from said lands until such time as the payments made according to the terms of said purchase price notes, aggregate such sum that the value of the White Pine and Yellow Pine timber and the Cedar Poles remaining uncut on said lands shall not be less than the amount of the purchase price remaining unpaid."

Paragraph 12 gave to the company "a lien upon all timber and logs upon said lands to secure the full payment of said purchase price notes," and "all taxes and fire assessments," forest patrol charges, etc., which might accrue or be or become liens on the land.

Paragraph 13 requires that "all logs cut from the timber on the land covered by this contract will be shipped to the Ohio Match Company at Heutter, Idaho, and the lumber cut from said lots, or an equivalent amount, will be shipped over the railroad lines of the Chicago, Milwaukee and St. Paul and Pacific Railroad Company, and the Vendees further agree that all Cedar Poles cut from the land covered by this contract shall be shipped over the railroad lines of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company," etc.

Paragraph 14 is as...