Radermacher v. Daniels

Decision Date28 January 1943
Docket Number7045
Citation64 Idaho 376,133 P.2d 713
PartiesHENRY J. RADERMACHER, Respondent, v. M. M. DANIELS and F. C. ERWIN, Co-partners doing business as Twin Falls Commission Company, Appellants
CourtIdaho Supreme Court


1. Where livestock sold by defendant was branded and brand was duly registered and filed in Department of Agriculture as plaintiff's brand, defendant had "notice" of plaintiff's ownership of livestock having such brand. (I.C.A., secs. 24-1004, 24-1011.)

2. Where, pending appeal of divorce decree awarding husband's livestock to wife, defendants with actual knowledge of pendency of appeal and knowledge that such livestock was branded with husband's brand, sold livestock as auctioneers, husband's silence at sale did not "estop" him from maintaining action to recover sale price.

3. Ordinarily, in action against co-partners' plea that act complained of was committed by a corporation is a complete defense.

4. In action against co-partners to recover price of livestock wrongfully sold, where it appeared that act complained of was committed by corporation, but that partners owned entire stock issue of corporation and had dissolved corporation and took up partnership relation under same name, fact that corporation committed act complained of was not a defense.

5. Those who take over business and assets of dissolved corporation take it subject to debts and liabilities of corporation to full extent of value of property taken over.

6. Sole right of management, control, and disposition of community property rests in husband. (I.C.A., sec. 31-913.)

7. Judgment, in divorce action, awarding community property to wife, from which appeal was taken, did not become "final" until appeal was finally disposed of, and sale of such property by auctioneers at instance of wife prior to disposal of appeal was wrongful as invading husband's right to control such property. (I.C.A., secs 12-606, 31-913.)

8. Where trial court with assent of counsel on both sides tried issues as in an equity case and empaneled jury in mere advisory capacity, and after adopting jury's answers to some interrogatories and rejecting others made findings of fact which were supported by evidence, on appeal Supreme Court would not determine whether case made by pleadings was one at law or equity.

Appeal from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. T. Bailey Lee, Judge.

Action to recover sale price of livestock. Judgment for plaintiff. Defendants appeal. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Rayborn & Rayborn and Harry Povey for appellants.

Where a party by conduct has intimated that he consents to an act which has been done or will offer no opposition thereto though it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the action to the prejudice of those who have acted on the fair inference to be drawn from his conduct. ( Exchange State Bank v. Taber, 26 Idaho 723, 737; Leaf v. Reynolds, 34 Idaho 643, 650; Seeley v. Security Nat. Bank, 40 Idaho 574, 585; Dicerson v. Colgrave, 100 U.S. 580, 25 L. ed. 618; Trustees v. Smith, (N. Y.) 23 N.E. 1002.)

Bissell and Bird for respondent.

The husband has the management and control of the community personal property, and a sale thereof by a wife, against the wishes of the husband, is invalid. (Sec. 31-913, I. C. A.; Kohny v. Dunbar, 21 Idaho 258, 121 P. 544; Chance v. Kobsted, 226 P. 632; McMullin v. Lyon Freezeproof Storage Co., 239 P. 422; LaRosa v. Glaze, 63 P.2d 1181; Radermacher v. Eckert, 62 Idaho , 123 P.2d 426.)

Whatever generally puts a person on inquiry is sufficient notice where the means of knowledge are at hand, and if he omits to inquire he is then chargeable with all the notice and information a reasonable inquiry would have revealed. (39 Am. Jur., pp. 238-0; 46 C. J. 543; Guthrie v. Ensign, 36 Idaho 673, 685, 213 P. 354.)

Properly recorded stock brands afford constructive notice of the contents of such record to subsequent purchasers and mortgagees. (Sec. 24-1008, I. C. A., as amended by Chap. 135, Sess. Laws, 1937; Sec. 54-811, I. C. A.)

An action is pending and cannot be considered as finally determined until its final determination upon appeal or until time for appeal has passed and no appeal has been taken, unless the judgment is sooner satisfied. (Sec. 12-606, I. C. A.; 2 Cal. Jur. 412; Radermacher v. Eckert, supra.)

Appellants acquired all the stock of the dissolved Twin Falls Commission Co., succeeded to all of its assets, and continued to do business at the old stand with the same equipment. Thereby they became liable for all unpaid claims and debts of the dissolved corporation to the extent of the property received by them. (13 Am. Jur. 1198; 97 A. L. R. 479-0; 19 C. J. S. 1541; Sec. 29-302, I. C. A.; United States v. Pann, 23 F.2d 714.)

AILSHIE, J. Holden, C.J., and Buckner, D.J., concur. BUDGE, J., concurring in conclusion, and dissenting in part. GIVENS, J., dissenting in part.



This action was commenced by plaintiff (respondents here) to recover from the defendants the sale price of certain livestock wrongfully sold by them as auctioneers, which property belonged to the plaintiff at the time the sale was made. Defendants answered and denied plaintiff's ownership and alleged that the property had been decreed to plaintiff's wife, Freda M. Radermacher, prior to the auction sale by them. That prior to the sale plaintiff consented to the making of the sale. Defendants also alleged that the sale was made by the Twin Falls Commission Company, Inc., and that the corporation had long since been dissolved; that the defendants, M. M. Daniels and F. C. Erwin, were co-partners doing business under the firm name and style of Twin Falls Commission Company. Trial was had and judgment was entered for the plaintiff as prayed for by his complaint, and defendants have appealed.

The case out of which this action ultimately arose (Radermacher v. Radermacher) has a long and varied history and has found its way to this court a number of times: Radermacher v. Radermacher, 59 Idaho 716, 87 P.2d 461; Radermacher v. Sutphen, 60 Idaho 529, 92 P.2d 1070; Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955; Radermacher v. Eckert, 63 Idaho 531, 123 P.2d 426. The facts material to the consideration of the present case are as follows:

By decree of District Court, September 3, 1937, entered in the case of "Henry J. Radermacher, Plaintiff, v. Freda M. Radermacher, Defendant", (59 Idaho 716) defendant was awarded the community personal property consisting of "not less than 52 head of cows, together with their 1937 calves, . . . . also not less than 25 head of horses." Appeal to the Supreme Court was taken November 12, 1937. That judgment was reversed by this court September 8, 1939, (59 Idaho 716); and the District Court was directed to eliminate from his decree that part thereof, awarding to Mrs. Radermacher any of the personal property. While the case of Radermacher v. Radermacher was pending in this court on appeal, defendants in this case, upon the solicitation of Mrs. Radermacher, made auction sale of a part of the personal property "for the account of Freda Radamaker", as follows: September 15, 1937, 1 W. F. Cow, $ 56.35; Oct. 6, '37, 1 Red Hfr. $ 40.25; Oct. 26, '37, 1 Roan Hf., $ 51.40; Jan. 10, 1938, sale of 9 mares and 2 geldings, $ 292.50; and March 7, 1938, sale of 2 geldings, $ 102.50, totaling $ 543.00.

Defendants had knowledge of the pendency of the action and the appeal and were so notified thereof prior to the making of the sale. Plaintiff testified that he notified them personally of the pendency of the appeal and forbade them to sell the property. That testimony, however, is disputed. All the livestock sold by defendants (with the possible exception of one animal) were branded with the Triangle Bar brand, which was duly registered. (Sec. 24-1004, I. C. A.) and filed in the department of agriculture in accordance with the requirements of the statute, as plaintiff's brand. This was notice of ownership of stock having that brand. (Sec. 24-1011; State v. Dunn, 13 Idaho 9, 88 P. 235.) Plaintiff admits being present at the first sale but denies being present at any of the other sales.

Peculiar to this case is the fact that plaintiff had previously been cited for contempt in the divorce case for failure to make maintenance and suit money payments as ordered by the court. Consequently, he might well and wisely have hesitated about interfering with a sale authorized by the trial court. At any rate, it is not thought that, under these circumstances, he should be estopped for keeping silent, if he did. Defendants knew whose property they were selling.

It is claimed that no cause of action was shown against defendants M. M. Daniels and F. C. Erwin, doing business under the firm name and style of Twin Falls Commission Company, for the reason that they were only copartners; whereas the sale of the property involved was made by the Twin Falls Commission Company, a corporation. Ordinarily, that would be a complete defense to a cause of action, but here facts existed which seem to fully sustain plaintiff's position. The corporation was organized April 20, 1937. Defendants, Daniels and Erwin, owned 55% of the outstanding stock; 15% was owned by other parties. On petition of Daniels and Erwin, the corporation was dissolved April 23, 1940. At the time of the dissolution of the corporation or...

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