Nelson v. Altizer

• Decision Date: 25 January 1944
• Docket Number: 7080
• Citation: 65 Idaho 428,144 P.2d 1009
• Parties: BUD M. NELSON and CORA F. NELSON, husband and wife, Respondents, v. KYLE ALTIZER and FLORENCE M. ALTIZER, husband and wife, Appellants
• Court: Idaho Supreme Court

144 P.2d 1009

65 Idaho 428

BUD M. NELSON and CORA F. NELSON, husband and wife, Respondents, v. KYLE ALTIZER and FLORENCE M. ALTIZER, husband and wife, Appellants

No. 7080

Supreme Court of Idaho

January 25, 1944

65 Idaho 428 at 438.

Original Opinion of November 17, 1943, Reported at 65 Idaho 428. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Holden, C.J. Ailshie, J., Givens, J., and Porter, D.J., concur. Dunlap, J., feeling himself disqualified, did not sit at the hearing or participate in the opinion on rehearing. Budge, J., dissenting.

OPINION

Holden, C.J.

On Rehearing

This case was originally heard October 5, 1943. November 17, 1943, the majority opinion was filed. December 3, 1943, appellants filed a petition for rehearing. December 6, 1943, the petition was granted. December 20, 1943, the cause was reheard. Appellants vigorously insist the agreement in question here being oral, is, therefore, invalid in that it was not in writing and that no note or memorandum of the same was signed by the parties to be charged (appellants), or by any agent of appellants, and that such oral agreement violates sec. 16-503 and sec. 16-505, subd. 5, I.C.A. These sections provide:

"[16-503.] Transfers of real property to be in writing. -- No estate or interest in real property, other than for leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing."

"[16-505.] Certain agreements to be in writing. -- In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

"1. * * *

"2. * * *

"3. * * *

"4. * * *

"5. An agreement * * * for the sale, of real property, or of an interest therein * * *"

The question thus presented was also presented to this court in Robbins v. Porter, 12 Idaho 738, 88 P. 86. In that case it appears it was orally agreed between Robbins and Porter that the former was to procure deeds to certain real estate located in Asotin County, Washington, and that the latter was to pay Robbins for his services in procuring the deeds. Subsequently, a second agreement was made whereby Porter agreed to convey to Robbins a small tract (3 1/2 acres) of land located in Nez Perce County, Idaho. Porter and wife executed a deed to the Idaho tract and left it with the attorney who prepared it. No escrow agreement was signed. A dispute arose between the parties as to what deeds Robbins was to procure and from whom. Delivery of the deed to the Idaho property being refused, Robbins brought suit against Porter and wife to compel specific performance. On appeal to this court it was contended by Porter that: "'This contract (referring to the agreement involved in that case) is not based upon any written instrument or any promise whereby any part of the consideration was paid, or any memorandum in writing signed by the parties to the action.'"

It will be noted Porter contended his deed to Robbins was not a sufficient note or memorandum to take the transaction out of the statute, and as above pointed out, this is the same contention made by appellants in the case at bar. This court held squarely against Porter's contention:

"A deed properly executed and left with the attorney of the grantor of real estate is sufficient to remove the bar of the statute of frauds in an action for specific performance where the purchase price has been paid."

And in the Robbins-Porter case, supra, it was further held:

"A complaint that fully sets out the contract for the conveyance of real estate, although the original contract was verbal (as in the case at bar), that is afterward merged into a different contract which is evidenced by a deed (as in the instant case) left in the hands of the attorney of the grantor for inspection of the grantee, is sufficient upon which to base a judgment for specific performance." (Emphasis ours.)

It is next vigorously insisted by appellants that:

"The evidence is not only in substantial conflict, but is in irreconcilable conflict over the principal matter involved in the litigation, that is, the purchase price to be paid for the involved property."

This court has repeatedly held where there is a substantial conflict in the evidence the verdict, or findings, as the case may be, will not be disturbed. (Syster v. Hazzard, 39 Ida. 580, 229 P. 1110; Rogers v. Crockett, 41 Ida. 336, 238 P. 894; Russell v. Boise Cold Storage Co., 43 Ida. 758, 254 P. 797; Webster v. McCullough, 45 Ida. 604, 264 P. 384; Boomer v. Isley, 49 Ida. 666, 290 P. 405; Isaak v. Journey, 52 Ida. 392, 15 P.2d 1069; Intermountain Ass'n. v. Hallstrom C. Co., 53 Ida. 151, 22 P.2d 686; California Jewelry Co. v. McDonald, 54 Ida. 248, 30 P.2d 778; Carrey v. Secesh Dredging etc. Co., Inc., 55 Ida. 136, 39 P.2d 772; Hill v. Wilkinson, 60 Ida. 243, 90 P.2d 696; Gore v. Richard Allen Mining Co., 61 Ida. 622, 105 P.2d 735; Stallinger v. Johnson, 65 Ida. 101, 139 P.2d 460, 464.)

And appellants further contend "there must be a mutual meeting of the minds on the terms of the agreement," and that the agreement involved in the case at bar was made under a mutual mistake of facts and that it is, therefore, void. It is well settled in this jurisdiction that all issues of fact must be determined by the trier of the facts, so that whether there was a meeting of the minds of the respective parties or whether "the principal amount of the College of Idaho mortgages, $ 1,000, was proposed to be withheld from settlement," that is to say, deducted from the purchase price, as well as all other controverted questions of fact, were issues for the trial court to determine, and the court having found against appellants on all such issues, and there being a substantial conflict in the evidence, we repeat, the findings of the trial court will not be disturbed.

Furthermore, where the facts "might very well lead different minds to reaching different conclusions upon the issue presented; and where such is the case, however meager the evidence, if it is of a substantial nature and character (as in the instant case), the findings of the triers of fact should prevail." (McKissick v. Oregon Short Line R. Co., 13 Ida. 195, 89 P. 629; Fleenor v. Oregon Short Line R. Co., 16 Ida. 781, 803, 102 P. 897; Denton v. City of Twin Falls, 54 Ida. 35, 43, 28 P.2d 202; Call v. City of Burley, 57 Ida. 58, 62 P.2d 101, 105; Dickey v. Clarke, 65 Ida. 247, 142 P.2d 597, 602.)

For the above stated reasons we adhere to the original opinion.

Ailshie, J., Givens, J., and Porter, D.J., concur.

Dunlap, J., feeling himself disqualified, did not sit at the hearing or participate in the opinion on rehearing.

DISSENT BY: BUDGE

BUDGE J., dissenting.

I adhere to the views expressed in my dissenting opinion...