Moyer v. Hyde

• Decision Date: 25 February 1922
• Citation: 204 P. 1068,35 Idaho 161
• Parties: J. D. MOYER and ELIZABETH MOYER, His Wife, Respondents, v. W. S. HYDE, S.E. HYDE and L. J. PARKER, as Copartners Under the Firm Name and Style of BUHL AUTO COMPANY, Appellants
• Court: Idaho Supreme Court

204 P. 1068

35 Idaho 161

J. D. MOYER and ELIZABETH MOYER, His Wife, Respondents, v. W. S. HYDE, S.E. HYDE and L. J. PARKER, as Copartners Under the Firm Name and Style of BUHL AUTO COMPANY, Appellants

Supreme Court of Idaho

February 25, 1922

NEGOTIABLE INSTRUMENTS-WHEN TITLE-RETAINING NOTE NOT NEGOTIABLE-AFFIDAVITS OF JURORS-NOT ADMISSIBLE TO IMPEACH VERDICT-RIGHTS OF PURCHASER-NOT AFFECTED BY TRANSFER OF NON-NEGOTIABLE INSTRUMENT.

1. A title-retaining instrument in the form of a promissory note which gives the holder power to declare the money due thereon and take possession of the property for which it is given whenever he deems himself insecure, is not payable at a fixed or determinable future time, and is non-negotiable under C. S., secs. 5868 and 5872.

2. Affidavits of jurors to the effect that under different conditions and circumstances, and upon different testimony they would have rendered a different verdict, are too indefinite and uncertain to furnish any substantial reason for vacating their verdict.

3. Where a purchaser executes a non-negotiable title-retaining note for a new car, and accepts a demonstrating car for use until the seller can furnish such a car as he purchased, and he makes frequent demands for the delivery of a new car which is never delivered, and the car so furnished is taken and sold under the terms of the title-retaining note, he may recover from the vendor the payments made, and the transfer of the note and the retaking and sale of the car by the holder of the note do not preclude his right of recovery against the vendor.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to recover money had and received. Judgment for plaintiffs and defendants appeal. Affirmed.

Judgment affirmed, with costs to respondents.

J. H. Sherfey and Walters, Hodgin & Bailey, for Appellants.

If the newly discovered evidence is cumulative merely, or designed to contradict a witness, it is not of a character to warrant a new trial, but this rule is subject to the limitation that if it appears probable that a different result would follow a retrial, by reason of the introduction of such evidence, and if the evidence is of such a character as to wholly overthrow the evidence of the adversary upon one or more vital issues, it would clearly be within the rule. (1 Haynes, New Trial & Appeal, sec. 90, p. 428; Oberlander v. Fixen & Co., 129 Cal. 690, 62 P. 254; Flannagan v. Newberg, 1 Idaho 78; 14 Cyc. Pl. & Pr., 792; Freeman v. Hoag, 208 Mich. 244, 175 N.W. 166; Hanson v. Bailey, 96 Minn. 274, 104 N.W. 969; Waite v. Fish, 17 S.D. 215, 95 N.W. 928.)

J. W. Taylor, for Respondents.

When newly discovered evidence relates to a substantial point or fact which was inquired into on the trial, it is cumulative. (Flannagan v. Newberg, 1 Idaho 78; Knolling & Co. v. Jones, 7 Idaho 466, 63 P. 638.)

Newly discovered evidence designed to contradict witnesses is not sufficient to warrant the granting of a new trial. (Hall v. Jensen, 14 Idaho 165, 93 P. 962; Montgomery v. Gray, 26 Idaho 583, 585 (on rehearing), 144 P. 646; Dayton v. Drumheller, 32 Idaho 283, 182 P. 102.)

LEE, J. McCarthy and Dunn, JJ., concur, RICE, C. J., Concurring Specially.

OPINION

LEE, J.

This was an action by respondents against appellants to recover money paid on the purchase price of a Kissel Kar, which they claim was never delivered, and damages in being deprived of its use during appellants' alleged default.

The answer admits that respondents purchased from the defendant and appellant Buhl Auto Company on July 5, 1917, a Kissel Kar, and alleges that it delivered Kissel Kar No. 3012, which had been used as a demonstrating car, and that respondents executed in payment therefor their title note for $ 1,425, which note as it now appears in the record recites that it was given for car No. 3012, and contains a condition that the holder might repossess such car, "and sell the same at any time they may deem themselves insecure." Two payments made in September and October following its date are indorsed on the note, aggregating $ 1,100.

The cause was tried by the court with a jury, and in addition to a general verdict for respondents in the sum of $ 1,100, the jury answered in the negative interrogatory 1, which required it to find whether the note in question was transferred by the defendant company prior to its maturity, and interrogatory 2, as to whether the Buhl Auto Company received the car back from the plaintiffs or any of the proceeds of the sale, in the affirmative. Judgment being entered upon the general verdict against appellants, they gave notice of intention to move for a new trial, upon the grounds of accident and surprise, newly discovered evidence, and insufficiency of the evidence, particularly specifying that there was no evidence to support said special findings that the note had not been transferred before maturity, and that the appellant company had received the car back from respondents or some of the proceeds of the sale of such car. Subsequently appellants filed a formal motion for a new trial, wherein the only ground relied upon is that of newly discovered evidence. This motion was supported by the affidavits of several persons, including some of the jurors, setting forth in effect what was claimed to be newly discovered evidence and the affidavits of such jurors that had it been produced at the trial their verdict might or would have been different. The motion for new trial was denied, from which order this appeal is taken. A single assignment of error is made, that "The court erred in denying and overruling the motion for new trial."

Respondents claim, and so testify, that at the time of the execution of the note in question, one Parish, a salesman for appellant company, represented to them that he was about to be called into government service, that while his company was at that time without any new Kissel Kars in stock, if they would sign this note for the purchase price of a new car, they might use the demonstrating car which he then had until the new ones arrived, and that if they would sign a contract it would enable him to get a commission on such sale that he would not otherwise get. To this respondent replied that if that was the case, he would sign up for a car, as he was willing to help any of the boys who had to go to war, as he could not go himself. Respondents further say that with this understanding the number of the car was not to be inserted in the note which they executed until the new car they were to receive arrived and its number could be determined, and that no number was inserted when they executed the note. The appearance of the instrument now indicates that the number was not written in at the time the note was signed, the number of the car being in a different ink.

There is very pronounced conflict in much of the testimony, particularly with reference to whether or not the note was transferred to the First National Bank of Idaho prior to its maturity. However, as we view the law applicable to the uncontroverted facts of this case, much of the testimony offered was immaterial and irrelevant to any issue presented by the pleadings.

It is not in dispute that respondents, soon after giving this note were furnished with...