National Ro-Tile Corp. v. Loomis

• Decision Date: 17 February 1960
• Docket Number: RO-TILE,No. 8766,8766
• Citation: 350 P.2d 217,82 Idaho 65
• Parties: NATIONALCORPORATION, an Idaho Corporation, Plaintiff-Respondent, v. Floyd LOOMIS and Viola Loomis, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 217

350 P.2d 217

82 Idaho 65

NATIONAL RO-TILE CORPORATION, an Idaho Corporation, Plaintiff-Respondent, v. Floyd LOOMIS and Viola Loomis, husband and wife, Defendants-Appellants.

No. 8766.

Supreme Court of Idaho.

Feb. 17, 1960.

Rehearing Denied March 31, 1960.

Donart & Donart, Weiser, for appellants.

Clemons, Skiles & Green, Boise, for respondent.

SMITH, Justice.

Respondent, as successor to Idaho Bartile Company, instituted this action to recover the contract price of installation of a tile roof upon appellants' dwelling house, together with attorney fees, alleging performance of its obligation to install the roof, required by a written contract of the parties, respondent's predecessor and appellants.

Appellants by their answer admit the execution of the contract but deny the remaining material allegations of the complaint. Appellants by way of separate defenses allege:

First: That respondent is barred from maintaining this action because of a prior action instituted by respondent's predecessor seeking foreclosure of its claim of lien for its labor and material furnished for installation of the tile roof, which action resulted in a judgment of nonsuit in favor of appellants from which no appeal was taken;

Second: That appellants were induced to sign the written contract because of the fraudulent representations of respondent's agent to the effect, that if the dwelling house should be reroofed with a tile roof installed by respondent, snow would slide from the tile roof as soon as, or sooner than, it would slide from the metallic roofs of appellants' other ranch buildings; that ice would not build up on the eaves of the dwelling house; that if snow would not so slide, then the tile roof would not cost appellants anything; that respondent executed and delivered to appellants a guaranty or warranty to such effect subsequent to the execution of the contract and before installation of the tile roof; that when the work of installing the roof was practically completed, respondent fraudulently procured the guaranty or warranty from appellants' possession and thereafter failed and refused to return it.

Trial, with a jury retained in an advisory capacity, both parties having moved for a directed verdict, resulted in judgment for respondent, from which appellants perfected an appeal.

Appellants assign error committed by the trial court in refusing to grant their motion for directed verdict on the ground that the judgment of nonsuit in the prior action precluded the maintenance of the instant action. Appellants rely primarily upon I.C., § 10-705(5) which in part provides:

'Dismissal or nonsuit.--An action may be dismissed, or a judgment of nonsuit entered, in the following cases:

* * *

* * *

'5. By the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case to entitle him to verdict or judgment.

'* * * A dismissal under the fifth subdivision shall operate as a bar to another action upon the same cause of action.' (Emphasis supplied.)

The prior action, commenced January 3, 1955, to foreclose respondent's recorded claim of lien asserted against appellants' real property, was grounded on the theory that at appellants' instance and request and for an agreed sum, respondent had performed labor and furnished materials necessary for the installation of a tile roof upon appellants' dwelling house.

Appellants, in their affirmative defense to the complaint in the prior action, alleged the written contract between the parties, which is dated September 9, 1954, and which constitutes the basis of the present action. This contract provides for payment of the purchase price of the tile roof in three annual installments commencing one year from the date of completion of the roof. It is thus clear that respondent prematurely brought the prior lien foreclosure action in that as of a time prior to commencement of that action the time of performance of the contract had not arrived, and no breach of the contract had occurred thereby to accelerate payment of the total purchase price. Gregory v. Peabody, 149 Wash. 227, 270 P. 825; Pemberton v. Ladue Realty & Construction Co., 359 Mo. 907, 224 S.W.2d 383; 30A Am.Jur., Judgments, § 335, p. 379, and § 365, p. 407; Restatement of the Law, Judgments, § 54, p. 211. Accordingly the judgment of nonsuit entered in the prior action did not constitute a bar to the present action.

We now shall consider appellants' assignment which questions the sufficiency of the evidence to sustain the judgment, appellants asserting that the undisputed evidence clearly shows that respondent executed and delivered to appellants the alleged written instrument of warranty.

Appellant Floyd Loomis testified that respondent executed and delivered to appellants such an instrument of warranty bearing the signatures of Mr. Nave, respondent's salesman, and Mr. Thompson, manager of respondent's Boise office. Mrs. Loomis corroborated this testimony. In addition, she related the circumstances of how Nave subsequently obtained possession of this instrument from her, when Mr. Loomis was absent, upon Nave's representation that respondent needed to incorporate the instrument of warranty into and as a part of the contract for installation of the roof, in order that the contract be complete upon respondent's presenting it to 'the bank' for loan purposes; that Nave represented he would take the warranty to a Mr....