Montgomery v. Gray

• Decision Date: 11 May 1914
• Citation: 26 Idaho 583,144 P. 646
• Parties: ZACHARIAH MONTGOMERY, Respondent, v. G. R. GRAY, Appellant
• Court: Idaho Supreme Court

144 P. 646

26 Idaho 583

ZACHARIAH MONTGOMERY, Respondent, v. G. R. GRAY, Appellant

Supreme Court of Idaho

May 11, 1914

VERDICT-EVIDENCE-SUFFICIENCY OF-EXCESSIVE DAMAGES-INSTRUCTIONS.

1. Held, that the evidence is sufficient to sustain the verdict.

2. Held, that there is no evidence indicating that the verdict was rendered under the influence of passion and prejudice.

3. Held, that the court did not err in giving or refusing to give certain instructions.

APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.

Action to recover the value of certain timber alleged to have been sold and delivered to the defendant. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Allen &amp Allen and Ezra R. Whitla, for Appellant.

E. W Wheelan and O. J. Bandelin, for Respondent.

Counsel cite no authorities on points decided.

SULLIVAN J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover the sum of $ 3,769.80 alleged to be the value of certain timber sold by the plaintiff, who is respondent here, to the defendant, who is appellant here. The written contract under which the sale of said timber was made is attached to the complaint and made a part thereof, where it is agreed, among other things, that the appellant shall have three years in which to cut and remove all of the merchantable timber on said land and that the payments under the contracts were to be made thirty days after each carload of timber was shipped.

The answer put in issue many of the allegations of the complaint, and the cause was tried by the court with a jury and resulted in a verdict in favor of the plaintiff for $ 1732.31 with interest at 7% from August 18, 1909, on which verdict a judgment was entered for that amount.

A motion for a new trial was denied and the appeal is from the order denying a new trial.

A number of errors are assigned, going to the sufficiency of the evidence to justify the verdict, excessive damages given under the influence of passion and prejudice, and the admission and rejection of certain testimony offered, and the giving and refusing to give certain instructions.

The main controversy arises over the amount of timber taken from said land by the defendant. The defendant took possession of the half section of land on which said timber stood, and, as we view the contract, it was...