Quayle v. Ream

• Decision Date: 13 January 1910
• Citation: 106 P. 610,17 Idaho 545
• Parties: WILLIAM QUAYLE, Respondent, v. W. D. REAM, Appellant
• Court: Idaho Supreme Court

106 P. 610

17 Idaho 545

WILLIAM QUAYLE, Respondent, v. W. D. REAM, Appellant

Supreme Court of Idaho

January 13, 1910

STATEMENT OF CASE-SUFFICIENCY OF EVIDENCE.

1. A statement of the case, prepared and settled to be used on motion for a new trial, may be used as a bill of exceptions on appeal from the judgment on all questions of law therein saved by exception, although it was never presented or used on motion for a new trial.

2. Evidence in this case examined and held sufficient to support the verdict and judgment.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Alfred Budge, Judge.

Action by plaintiff for debt. Judgment in favor of the plaintiff and defendant appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of the respondent. Petition for rehearing denied.

Clark &amp Budge, for Appellant.

Thomas L. Glenn, for Respondent.

Counsel cite no authorities.

AILSHIE J. Sullivan, C. J., concurs. Stewart, J., dissents.

OPINION

AILSHIE, J.

A motion was made in this case to strike from the transcript the statement or bill of exceptions, on the ground that the same purports to be a statement on motion for a new trial, and that notice of intention to move for a new trial was given but that no motion for a new trial was ever made, and that the proposed statement and bill of exceptions was never used on motion for a new trial. This motion must be overruled on the authority of Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363. It was there held that "all errors properly saved and assigned in a statement of the case may be reviewed upon appeal from the judgment, although it be taken more than sixty days after the rendition of such judgment, and although the statement be not used on the hearing of a motion for a new trial." The motion is denied.

This case was here on appeal at the January, 1909, term of this court. The plaintiff had recovered judgment in the lower court, and that judgment was reversed by this court on the grounds of insufficiency of the evidence to support the verdict and judgment. This court observed at that time that the evidence was "most unsatisfactory" and "that the ends of justice will be best served by granting a new trial in this case." The cause was remanded and a new trial was had, and practically the same evidence, with slight additions and variations, was introduced on the new trial as upon the original trial. The jury again rendered a verdict in favor of the plaintiff. The defendant appealed from the judgment within sixty days after the rendition thereof, and has presented to this court a statement of the evidence given in the case, and asks this court to again reverse the judgment.

The history of the case and the facts and circumstances upon which it turned in the lower court are set out somewhat in detail in the former opinion of this court as reported in 15 Idaho 666, 99 P. 707. We will refrain, therefore, from any further statement of the case, except to call attention to a few incidents and circumstances which influence our decision on this appeal.

The principal controversy arose over the right of the defendant to have an offset of $ 305 on account of a check given to the appellant, Ream, by one M. Grill, and by Ream indorsed and delivered to respondent, Quayle. The agreement bearing date April 10, 1903, executed in duplicate and introduced in evidence, says: "It is to be looked up and see if any of Mr. Grill and Corollo's checks have been turned to Mr Quayle. If so, it is to be credited on this settlement." The note sued upon bears date April 11, 1905, and if the agreement, bearing date April 10, 1903, bears the correct date, then this agreement certainly cannot have reference to the settlement wherein and whereby the note sued on was executed. According to the testimony of the defendant and his wife, however, a mistake was made in the date of the agreement and duplicate, and it should have been "April 10, 1905." It is conceded that the agreement and duplicate were written by Mrs. Ream. She testified that a mistake was made in dating it "April 10, 1903," and that as a matter of fact it was written and signed on April 10, 1905. The plaintiff is not at all positive as to his dates, and appears to have been somewhat confused not only as to the date of this instrument but of other transactions between the parties. This is doubtless partly due to the fact that the accounts were made and the writing was done by Mrs. Ream and not by respondent. The substance of his testimony, however, is to the effect that this agreement was made on the day it bears date, April 10, 1903. The statement of the account between the parties giving the items of debits and credits between them and comprising two sheets of the same kind of paper and evidently from the same tablet that the duplicates bearing date April 10, 1903, were written on, has been introduced in evidence, and it, too, is in the handwriting of Mrs. Ream and shows the balance of $ 605.34 due Quayle, and this is the amount for which the note was given. The Reams insist that this statement was written at the same time and on the same date that the duplicate agreement was executed. The statement of the accounts, however, bears date at the top of the page "April 10, 1905." This date is...