Morton v. Whitson

• Citation: 45 Idaho 28,260 P. 426
• Decision Date: 22 October 1927
• Docket Number: 4653
• Parties: JOHN W. MORTON, Appellant, v. J. B. WHITSON and J. D. WHITSON, Copartners, Doing Business Under the Firm Name and Style of WHITSON BROTHERS, Respondents
• Court: United States State Supreme Court of Idaho

260 P. 426

45 Idaho 28

JOHN W. MORTON, Appellant, v. J. B. WHITSON and J. D. WHITSON, Copartners, Doing Business Under the Firm Name and Style of WHITSON BROTHERS, Respondents

No. 4653

Supreme Court of Idaho

October 22, 1927

SALES-LIMITATION OF ACTIONS-NO APPLICATION TO DEFENSES-PLEADING-PRAYER OF RELIEF-EVIDENCE-RESCISSION AND BREACH OF WARRANTY-APPEAL AND ERROR-RULE ON CONFLICTING EVIDENCE-TRIAL-INSTRUCTIONS.

1. The statute of limitations is inapplicable to defenses.

2. Matter expressly pleaded by answer as affirmative defense cannot be made a counterclaim by the prayer of the answer the prayer of a pleading being no part of the cause of action or defense stated therein, and not vitiating or changing the character of the pleading.

3. Evidence in action on a note, given with an automobile in payment of a truck, held sufficient to establish a rescission of the contract, as well as a breach of warranty of truck.

4. Where there is sufficient evidence, if uncontradicted, to sustain a verdict, it will not be disturbed on appeal because of conflict in the evidence.

5. Error in giving instructions as to counterclaim was harmless where another instruction limited rights from defendant's rescission of the contract of sale to defense of plaintiff's action, and there was no affirmative verdict for defendant.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Raymond L. Givens, Judge.

Suit to recover on promissory note. Judgment for defendants. Affirmed.

Judgment affirmed and order denying the motion for a new trial sustained, and costs to respondents.

R. W Beckwith, for Appellant.

A counterclaim is not a defense to an action. (34 Cyc. 644; Equitable Life Assur. Soc. v. Cuyler, 75 N.Y. 511; Stowell v. Eldred, 39 Wis. 614.)

If the same facts constitute both a defense and a counterclaim defendant may use them as either or he may separately plead them as both, in which case he cannot be compelled to elect upon which he will rely, but the same portion of a single pleading cannot constitute both a defense and a counterclaim. (31 Cyc. 153, 225; Harrison v. McCormick, 2 Cal Unrep. 612, 9 P. 114; Meyendorf v. Frohner, 3 Mont. 282, 5 Morr. Min. Rep. 559.)

The statute of limitations runs against counterclaims. (34 Cyc. 670; Frank v. Davis, 34 Idaho 678, 203 P. 287; Wonnacott v. Kootenai Co., 32 Idaho 342, 182 P. 353; Williams v. Shrope, 30 Idaho 746, 168 P. 162; Toby v. Allen, 3 Kan. 399.)

The answer separate from the counterclaim does not state facts sufficient to constitute a defense to the action, (a) in that the execution and delivery of the note sued upon are admitted, as no reason is set up or shown why payment of the note is not due and owing. (Lindsay v. Wyatt, 1 Idaho 738; C. S., sec. 6694, as amended by chap. 10 of the 1925 Sess. Laws; 31 Cyc. 278.)

A new trial is proper where the verdict is contrary to the evidence or the weight of evidence. (Martin v. Martin, 113 Cal. 479, 45 P. 813; Central Trust Co. v. Stoddard, 4 Cal.App. 647, 88 P. 806.)

A new trial is proper where the verdict is contrary to the law governing the case and the verdict must be set aside. (29 Cyc. 818-829; C. S., sec. 6862; Emerson v. Santa Clara County, 40 Cal. 543; Martin v. Matfield, 49 Cal. 42; Speck v. Hoyt, 3 Cal. 413; Hart v. Weber, 57 Neb. 442, 77 N.W. 1085.)

The trial court may and should grant a new trial regardless of the existence of a conflict in the evidence, if he concludes that the verdict of the jury is improper or that there is a miscarriage of justice. (Jones v. Campbell, 11 Idaho 752, 84 P. 510; Watt v. Stanfield, 36 Idaho 366, 210 P. 998; Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398.)

Richards & Haga, for Respondents.

The prayer of a pleading is no part of the statement of the cause of action or of the defense, and a prayer for improper relief or for relief not justified will not vitiate a pleading otherwise sufficient or will not change the character of the pleading, and an answer will not be considered as a cross-complaint or counterclaim because of a prayer for affirmative relief. (31 Cyc. 110; Idaho Irr. Co. v. Dill, 25 Idaho 711, 717, 139 P. 714; Mark v. Murphy, 76 Ind. 534; Board of Commrs. v. Cutler, 7 Ind. 6; Seyberth v. American Commander Mining & Milling Co., 42 Idaho 254, 270, 245 P. 392; Brannan v. Paty, 58 Cal. 330; Carpenter v. Hewel, 67 Cal. 589, 8 P. 314; Shain v. Belvin, 79 Cal. 262, 21 P. 747; Bancroft v. Atyeo, 22 Kan. 32; Richards v. Littell, 16 Misc. 339, 38 N.Y.S. 73, 75.)

The statute of limitations does not apply to defenses. (17 R. C. L. 112; Frank v. Davis, 34 Idaho 678, 681, 203 P. 287; State v. Tanner, 45 Wash. 348, 88 P. 321; Morrow v. Hanson, 9 Ga. 398, 54 Am. Dec. 347; Williams v. Neeley, 134 F. 1, 67 C. C. A. 171, 69 L. R. A. 232; Buck v. Equitable Life Assur. Society, 96 Wash. 683, 165 P. 878.)

A matter of defense which arises out of and is a part of the same transaction upon which the original action is founded is neither counterclaim, cross-complaint nor set-off. (Waterman on Set-off, Recoupment and Counterclaim, p. 4; Krausse v. Greenfield, 61 Ore. 502, Ann. Cas. 1914B, 115, 123 P. 392, 394; Sawyer v. Van Deren, 74 N.J.L. 673, 66 A. 396; Hastorf v. Degnon-McLean Contracting Co., 128 F. 982; Williams v. Neeley, 134 F. 1, 67 C. C. A. 171, 69 L. R. A. 878.)

Instructions must be taken as an entirety and even though an isolated or detached clause is in itself inaccurate or incomplete, if taken together they properly express the law applicable to the case, it will be assumed the jury gave due consideration to all of the instructions rather than to an isolated part. (14 R. C. L. 817; Tarr v. Oregon Short Line R. R. Co., 14 Idaho 192, 207, 125 Am. St. 151, 93 P. 957.)

The appellate court will not disturb the verdict of the jury or the judgment of the trial court because of a conflict in evidence where there is sufficient proof, if uncontradicted, to sustain such judgment or verdict. (Ross v. Kerr, 30 Idaho 492, 167 P. 654; Fleming v. Benson, 32 Idaho 103, 178 P. 482; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Fritcher v. Kelley, 34 Idaho 471, 201 P. 1037; Singh v. McKee, 38 Idaho 656, 225 P. 400; Walling v. McMillan Sheep Co., 40 Idaho 513, 234 P. 152.)

Where the trial court has refused to grant a new trial it is to be assumed that the trial court was of the opinion that the verdict of the jury was proper and that justice had been done. (Short v. Boise Valley Traction Co., 38 Idaho 593, 601, 225 P. 398.)

BABCOCK, Commissioner. Featherstone, Adair, CC., Wm. E. Lee, C. J., Taylor and T. Bailey Lee, JJ., concurring. Budge, J., did not participate in the decision. Givens, J., disqualified.

OPINION

BABCOCK, Commissioner.--

Plaintiff, appellant here, brought this action to recover upon a promissory note for the sum of $ 800, dated June 1, 1919, executed and delivered by defendants, respondents here, to the appellant, consideration of the note being part of the purchase price of a truck. A demurrer to the original complaint was sustained and an amended complaint was filed. Defendants' answer to the amended complaint admitted the execution and delivery of the note, but denied that there was anything due thereon, and set up as an affirmative defense that the defendants purchased of plaintiff the truck in question at a price of $ 2,000 and delivered to the plaintiff one Buick touring car, valued at $ 1,200, and the note sued on in this action in payment thereof; that the plaintiff guaranteed and warranted the truck to be in good working order, properly constructed, free from all defects, and capable of performing the work for which defendants desired it; that the truck when delivered by plaintiff to defendants was not as guaranteed and warranted by plaintiff; that said truck was wholly unsatisfactory to defendants; that it was defectively constructed and not in working order and was not capable of doing the ordinary work required of it by defendants; that after numerous efforts on the part of defendants to use the truck for their ordinary work, which consisted of hauling supplies to the sheep camps, and finding said truck to be defectively constructed and wholly unsatisfactory and incapable of doing said work, the defendants, in the month of June, 1919, rescinded their contract of purchase and returned the truck to plaintiff; that plaintiff accepted and received the truck, and that defendants then and there demanded of plaintiff the return of the note sued on in this action. It is further alleged that by reason of the acceptance of the truck by plaintiff, and by reason of the fact that the truck was not as guaranteed and warranted by plaintiff, and by reason of the rescission of the contract of purchase of the same and the return of the said truck to the plaintiff, defendants are entitled to the return of the touring car, and the return and cancellation of the note. In their prayer for relief, defendants ask that the plaintiff take nothing by his amended complaint; that they have judgment against him for the return of the promissory note; that the court by its judgment order the return of the said note and that the same be canceled; and also ask judgment against the plaintiff for the return of the Buick car, and, if the same cannot be returned, for the value thereof.

Plaintiff demurred to the answer of the defendants on the grounds that the same did not constitute a defense to the action, and raised the bar of the statute of limitations. The demurrer being overruled the cause was thereafter tried to the court and jury, and verdict returned for the defendants. Plaintiff moved for a new trial which motion was denied. This appeal is from the judgment and the order denying the motion for a new trial.

The principal contentions of the...