Nab v. Hills

• Decision Date: 07 April 1969
• Docket Number: No. 10125,10125
• Citation: 452 P.2d 981,92 Idaho 877
• Parties: Reuben C. NAB, dba Aluma Sales Co., Plaintiff-Appellant, v. Raymond HILLS and Joanne Hills, husband and wife, and William P. Hills and Bessie C. Hills, husband and Wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 981

452 P.2d 981

92 Idaho 877

Reuben C. NAB, dba Aluma Sales Co., Plaintiff-Appellant, v. Raymond HILLS and Joanne Hills, husband and wife, and William P. Hills and Bessie C. Hills, husband and Wife, Defendants-Respondents.

No. 10125.

Supreme Court of Idaho.

April 7, 1969.

Schwartz & Doerr, Twin Falls, for plaintiff-appellant.

Rayborn, Rayborn, Webb & Pike, Twin Falls, for defendants-respondents.

DONALDSON, Justice.

Plaintiff (appellant) Reuben C. Nab, dba Aluma Sales Co., brought this action against defendants (respondents) William and Bessie Hills, husband and wife, and Raymond and Joanne Hills, husbnad and wife, to foreclose a materialman's lien on the following described real property:

'Southeast Quarter (SE 1/4) of Section Nine (9), Towniship Nine (9), Range Seventeen (17) East of Boise Meridian, Jerome County, Idaho.' (Pl. Ex. F.).

William and Bessie Hills were record owners of the property, and Raymond and Joanne Hills had an equitable interest therein under a contract for the sale of the property. Unless otherwise specified, the name Hills as used in this opinion refers to Raymond and Joanne Hills. Defendants denied the allegations of the complaint, raised the affirmative defense of fraud, and counterclaimed in the alternative for damages. Apparently at trial the counterclaim for monetary damages was abandoned.

The case was heard before an advisory jury, to whom the trial court put written interrogatories. Based upon the answers to the interrogatories the court made findings of fact, conclusions of law and judgment, dismissing plaintiff's complaint and decreeing entry of judgment in favor of defendants.

Evidence adduced at trial showed that Raymond and Joanne entered into a contract with Raymond's parents, William and Bessie, to purchase the property in question, a farm located in Jerome County. The younger Hills resided in the house (an old, wood-frame dwelling) located on the property. Early in 1966, Joanne sent a card of inquiry to the Reynolds Metals Company, whose general office is located in Richmond, Virginia, for the purpose of obtaining information concerning aluminum construction materials. Raymond was to be transferred by his employer to another area in Idaho; he and his wife intended to build a house in the new location. It appears from the record that before trial but after the events involved in this litigation they did move from Jerome County to Buhl, in Twin Falls County.

February 22, 1966, Raymond received a telephone call from a Mr. Cocotis, representing himself as an employee of Aluma Sales Company. Mr. Cocotis stated over the phone that he had received a card to the effect that the Hills were interested in aluminum products. An appointment was made for Mr. Cocotis to see the Hills the following evening. 7:00 P.M., February 23rd, Mr. Cocotis, in company with Gerald Patterson, arrived at the farm. Mr. Patterson, ¹ according to Raymond and Joanne, described himself as an advertising man employed by Reynolds Metals. He carried a brief case which bore on its side the distinctive emblem of the Reynolds Company.

In fact Patterson was not employed by Reynolds, but worked on a commission basis as a salesman for Aluma. Aluma was a sales outfit wholly owned by plaintiff Reuben Nab. Aluma held a franchise from another company located in Salt Lake City to distribute Reynolds products in the Southcentral Idaho area. The Salt Lake City company in turn had a franchise agreement with Reynolds to distribute the products throughout the Pacific Northwest. Whether the Salt Lake City operation was a subsidiary of Reynolds cannot be determined from the record. At any rate, there is no reason to doubt that Patterson lied when he claimed to be an advertising employee of Reynolds Metals.

From the testimony of Raymond and Joanne, it appears that Mr. Patterson stated to them that he was in the Twin Falls area to set up a 'model home' for the purpose of advertising Reynolds aluminum siding and other aluminum products. The Hills advised him that they did not wish to re-do the exterior of their home because of the impending move to another location. In answer to a question of Mr. Patterson, they also stated that they did not intend to sell the farm or the house. Mr. Patterson in turn asked them if they would be interested in having their house resided in aluminum at no cost, providing that Reynolds could use their house as a 'model home.' Allegedly the house was in a suitable location for advertising purposes and was of a type of construction which would lend itself well to 'before' and 'after' photographs. Patterson also told the Hills that Reynolds would make up 50,000 advertising brochures using photos of the farm house. In addition Patterson stated that the Hills would not have to do any promotional work, but need only make their house available for the advertising and demonstration needs of Reynolds. Joanne and Raymond expressed interest in this proposition.

Later that evening Mr. Patterson, Raymond and Joanne worked out plans as to exactly how the house would be re-structured. The cost of remodeling was estimated by Patterson to be $2,450.00. This cost was to be carried on Reynolds' books as advertising expense. According to the Hills, they were to be paid by Reynolds 7% (up to $250.00) of each re-siding job sold in the Twin Falls area through the use of their home. All checks up to $2,450.00 from Reynolds to the Hills were to be reendorsed over to Reynolds. Thereafter the Hills were to retain the 7% commission as consideration for the use of their house. Under no circumstances were the Hills to Be liable for the cost of the siding. A writing was drawn between the Hills and Aluma Sales Co. obligating the Hills to pay Aluma the sum of $2,450.00 plus service charges of $274.40 at the rate of $55.25 per month for 60 months. Joanne and Raymond were told by Patterson that the writing was a mere formality so that Reynolds could properly deduct the sum as advertising expense from its corporate income tax. They were also informed that the instrument made Aluma a party rather than Reynolds because Aluma was Reynolds' franchised dealer in Southcentral Idaho and because Aluma would be doing the actual work on the house.

Appellant testified that the agreement was as stated in the writing. In addition, for every person who, as a result of a referral by the Hills, purchased aluminum siding from Nab, the Hills were to receive a commission equalling 7% of the price of such purchase or $200.00, whichever happened to be less. It is interesting to note that the referral sales agreement, which Nab contends existed, is directly contrary to the writing which is the basis of Nab's suit. One of the clauses therein states:

'I/we hereby certify the following for the purpose of inducing the extension of credit: * * *

4. It has not been represented that I (we) will receive a cash bonus or commission of future sales as an inducement for the consummation of this transaction.'

Thus by appellant's own testimony, it is demonstrable that the writing underlying his claim did not truly express the agreement of the parties.

Appellant introduced into evidence, as the second page of the writing already referred to, the following instrument allegedly signed by the Hills:

'DO NOT SIGN WITHOUT READING!

'I, the undersigned home owner, understand clearly that:

1. I have signed a contract for home improvements dated 2/23/66; for $2450.00 and numbered _ _.

2. My contract price is a cash price and does not include any carrying charges, insurance, etc., for long term financing.

3. My monthly payments, if desired and approved, will include all finance charges, etc.

4. If my contract calls for bills to be paid for me, they will be paid when job is completed and papers processed but at least 30 days before first payment is due on the contract.

5. If I am to participate in finder's fee for other jobs, I will furnish prospect's name and address in accordance with the finder's fee agreement, but I am not required to do any selling.

6. I can use earned finder's fee in whatever way I please and they have nothing to do with my monthly payments.

7. There has been no agreement, written or verbal which in any way disagrees with or alters the written contract I have signed, the work specified in it, or this statement.

_ _

Witness

X /s/ Raymond Hills

Owner

X /s/ Joanne Hills

Owner

DO NOT SIGN WITHOUT READING'

The Hills denied ever signing the instrument, and contened that their signatures were forged thereon. The evidence, which will not be cited herein is persuasive that the signatures were a forgery.

Raymond Hills testified that he and his wife did sign an instrument with the Reynolds Emblem and the heading 'Model Home,' printed on it, and containing provisions concerning the payment of commissions for the use of their home. He testified that neither he nor his wife received a copy of the writing, but rather Mr. Patterson retained all copies so that they might be approved in Virginia by the Reynolds Board of Directors.

The next day Aluma delivered the materials for the job. Actual construction work was performed by an independent contractor employed by Aluma.

At some time during the rebuilding process, which took several weeks, Joanne and Raymond became aware that Aluma intended to hold them to the terms of the written instrument. There is conflicting evidence as to how far the job had progressed before they learned of this fact. Novertheless, it is clear that they did not request Aluma to stop the construction process once the serpent of doubt had crept into the Eden of their minds. Rather they permitted the work to be finished.

Evidence was introduced to indicate a similar course of dealing between Aluma and other persons in the Twin Falls area.

It is uncontroverted that the Hills paid no part of the money due under the written instrument. Likewise it has not been urged that the work done on the house was in any manner...