Nalder v. Kellogg Sales Co., 8529

• Decision Date: 16 August 1957
• Docket Number: No. 8529,8529
• Citation: 6 Utah 2d 367,314 P.2d 350
• Parties: d 367 H. William NALDER, Catherine Nalder, H. William Nalder, Jr., Plaintiffs and Respondents, v. KELLOGG SALES COMPANY, a corporation, Defendant and Appellant.
• Court: Utah Supreme Court

Page 350

314 P.2d 350

6 Utah 2d 367

H. William NALDER, Catherine Nalder, H. William Nalder, Jr. Plaintiffs and Respondents, v. KELLOGG SALES COMPANY, a corporation, Defendant and Appellant.

No. 8529.

Supreme Court of Utah.

Aug. 16, 1957.

Ray, Quinney & Nebeker, Salt Lake City, for appellant.

Dan S. Bushnell, Wilford A. Beesley, Salt Lake City, for respondents.

HARDING, District Judge.

This is the second time this case has been before this court on appeal. The former opinion is reported in 4 Utah 2d 117, 288 P.2d 456.

The action is to recover damages which the plaintiffs claim occurred as a result of defendant's wrongful failure to release real and chattel mortgages. From an adverse verdict by a jury and judgment entered thereon, the defendant appeals.

During 1949 the defendant financed the plaintiffs' turkey raising operations, taking as security a real estate and a chattel mortgage. The plaintiffs suffered a loss that year and were unable to pay the defendant the full amount of the 1949 indebtedness. In August, 1950, the amount still owing for 1949 was determined and the plaintiffs were requested to and did execute a real estate mortgage to cover that deficit. In the meantime, the defendant was financing the plaintiffs' 1950 turkey crop and in that connection, as security, had taken another real estate mortgage and another chattel mortgage. In 1951 the defendant continued to finance the plaintiffs and took a chattel mortgage for that year.

The indebtedness for 1950 was paid that fall and the indebtedness for 1951 was fully paid in January, 1952, and a small balance was credited on the 1949 indebtedness, represented by the August, 1950, notes and mortgage. Until March 11, 1954, all the real and chattel mortgages, being three of each and totaling $107,401.92, were held of record, notwithstanding the plaintiffs owed the defendant only about $6,000 secured by the August, 1950, real estate mortgage. On March 11, 1954, the defendant released all the mortgages except the one of August, 1950, which, concededly, was a valid and subsisting lien.

The defendant declined to finance the plaintiffs for 1952 and thereafter. The plaintiffs, while still claiming to operate as a partnership, sought to obtain financing as individuals from other sources. Their endeavors were only partially successful and they were forced to limit their turkey raising to relatively small flocks during 1952, 1953, 1954. They claim that their business was successful during the latter three years, and that had they been able to secure financing for all the turkeys they proposed and were prepared to handle, they would have made profits amounting to $56,268.82 in excess of what they did make. They allege that the financing would have been available for them but for the wrongful refusal of the defendants to release the first two real estate mortgages and the three chattel mortgages.

The defendant counterclaimed for the balance owing on the August, 1950, note and asked for a foreclosure of the mortgage.

The defendant assigns and argues eleven points to warrant a reversal of the judgment.

The first point is resolved by pointing out that the second trial was a completely new trial and did not restrict the plaintiffs to the matters shown in the first trial.

'An order directing a new trial has the effect of vacating the proceedings and leaving the case as though no trial had been had. The verdict and judgment are set aside, even though the order does not specifically mention either. The granting of the motion usually has the effect, ipso facto, of vacating the judgment. If a new trial has been directed in general terms, the order has the effect of granting a new trial as to all of the parties and reopening all of the issues in the cause.' 39 Am.Jur. 201.

The matters discussed by defendant in points designated 2, 3, 6 and 7 concern disputed questions of fact which were properly submitted to the jury and resolved by its verdict.

Defendant's point 5 relates to the admission in evidence of certain exhibits.

In an attempt to prove the amount of damages, the plaintiffs offered in evidence and the court received Exhibits I-1, I-2, Q, R, and N-1 to 4. The defendant assigns this as error. Exhibits I-1 and I-2 were received upon stipulation of counsel. They purport to be copies of ledger sheets from the records of Lee Brown Processing Company. Exhibits Q and R are statements prepared by the same company purporting to show turkeys sold by plaintiffs to the company in 1952 and 1954 the amounts paid for the turkeys and the processing charges paid by plaintiffs in connection with the sales. Q and R were admitted on the testimony of Nalder, Sr. that such statements showed the turkeys he sold and the processing charges therefor. There was no error in receiving Exhibits I-1, I-2, Q and R for the purpose indicated.

Exhibits N-1 to 4 show what it commonly called profit and loss statements, which purport to indicate the profit made by plaintiffs in 1952-53-54 on the limited number of turkeys raised and marketed during the respective years. Taking into consideration the profit per bird, there is projected the profit that would have been earned had plaintiffs been able to secure the financing required to raise and market the number of turkeys they proposed and were prepared to raise. This exhibit is potent evidence when properly prepared. It saves the court and jury considerable time and effort in compiling the figures...