Mitchell v. Atwood, 6205
| Citation | 47 P.2d 680,55 Idaho 772 |
| Decision Date | 10 July 1935 |
| Docket Number | 6205 |
| Parties | GEORGE F. MITCHELL and LORETTA K. MITCHELL, His Wife, Appellants, v. FRANK T. ATWOOD and HELEN DELPHENE ATWOOD, His Wife, Respondents |
| Court | United States State Supreme Court of Idaho |
VENDOR AND PURCHASER-RESCISSION OF CONTRACT BY MUTUAL CONSENT-RIGHT OF PARTIES-HUSBAND AND WIFE-COMMUNITY PROPERTY-APPEAL AND ERROR-ASSIGNMENTS OF ERROR-INSTRUCTIONS.
1. Determination of truth of testimony was within jury's province.
2. Where contract for sale of real estate was canceled by mutual consent of parties thereto, and purchasers vacated property and surrendered possession thereof to vendors, vendors held not entitled to recover past-due instalments of purchase price.
3. Where evidence was sufficient to justify jury's verdict Supreme Court could not disturb verdict.
4. Supreme Court would not pass upon assignment of error not called to trial court's attention.
5. Appellants to obtain review of allegedly erroneous instruction must submit to trial court instruction stating rule as they contend it should have been stated to jury.
6. In action to collect past-due instalments on contract for sale of real estate, where defense was that contract had been canceled by mutual agreement of parties, instruction that only question was whether plaintiffs canceled contract held not prejudicial error as against contention that jury should have been instructed that only question was whether there was an agreement for mutual cancelation of contract.
7. Where vendees, husband and wife, in vendor's action to collect past-due instalments on realty contract jointly contended that contract had been rescinded by mutual agreement of parties, vendor could not assert that contract could be rescinded only by writing because contract involved community interest in realty, since wife's participation in suit would thereafter estop her from asserting any interest in property.
8. Party dealing with community property may not invoke statute enacted for protection of community property to obtain advantage over such property (I. C. A., sec. 31-913).
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Action for debt. Judgment for defendants. Plaintiffs appeal. Affirmed.
Judgment affirmed with costs to respondents.
Tannahill Durham & Hyatt, for Appellants.
A written contract may be modified by a subsequent oral agreement but the evidence to establish such fact must be clear and satisfactory and should not leave any uncertainty as to the intent of the parties. Prairie Dev. Co. v. Leiberg, 15 Idaho 379, 391, 98 P. 616.)
An interest in real estate cannot be transferred by word of mouth and without any written instrument purporting to convey such property or any change of possession. (Oylear v. Oylear, 35 Idaho 732-742, 208 P. 857; Schulz v. Hansing, 36 Idaho 121-125, 209 P. 727.)
A contract for the sale of community property not signed and acknowledged by both husband and wife is invalid. (Hart v. Turner, 39 Idaho 50, 226 P. 282.)
Leo McCarty, for Respondents.
One seeking a reversal on the ground of insufficient evidence must show from the record that there is no evidence upon which to base the verdict. (Chapman v. Rivas, 39 Idaho 718, 229 P. 745; Black v. Black, 33 Idaho 226, 191 P. 353; Bafus v. Peeper, 33 Idaho 324, 194 P. 96.)
This action was instituted for the purpose of collecting past due monthly installments on a contract for the sale of real property. Plaintiffs and defendants had entered into a contract whereby plaintiffs agreed to sell and defendants agreed to purchase a tract of land on which there was a first and second mortgage. Purchasers agreed to assume payment of the two mortgages and to pay the vendors the sum of $ 1,088.10 in installments of $ 11 each month. A deed to the property was executed and placed in escrow. After making payments totaling the sum of $ 171.10 the vendees defaulted and this action was thereafter instituted for the collection of the past due installments.
Defendants answered admitting the execution of the contract, the failure to make the payments, and alleged as a defense to the action that a rescission of the contract had been mutually agreed upon in the month of May, 1932; that thereafter on June 1, 1932, the defendants vacated the property and surrendered possession to the plaintiffs in accordance with such mutual consent and agreement. The case was tried to the court and a jury and a verdict was returned in favor of defendants and judgment was thereupon entered for the defendants from which plaintiffs have prosecuted this appeal.
Appellants by the opening sentence of their argument state the issue confronting the court as follows: "The main question to be decided on this appeal is: Is the evidence in this case sufficient to support the verdict of the jury in favor of the defendants and the judgment entered thereon."
We have read the briefs and the transcript very carefully for the purpose of determining whether or not there was sufficient substantial evidence before the jury to support the verdict returned. We find a conflict in the evidence on two points: (1) As to what was said in the conversation at which it is claimed the agreement was reached for rescission and cancelation of the contract; and (2) as to the delivery of the keys to the house upon the respondents removing therefrom. It was within the province of the jury to determine just what testimony was true and what was untrue. There was sufficient evidence before the jury to justify them in returning the verdict which they found, and in such case we cannot, under the established rule of this court, disturb their verdict. The rule is too well established in this jurisdiction to require more than mention. (Boomer v. Isley, 49 Idaho 666, 290 P. 405.)
Appellants have assigned error as to statements contained in two instructions given by the court. The first is contained in Instruction No. 5 and reads as follows "and the burden of proof is upon the defendant to prove the affirmative...
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