Raff v. Baird

• Decision Date: 13 May 1955
• Docket Number: No. 8230,8230
• Citation: 283 P.2d 927,76 Idaho 422
• Parties: Dayton RAFF, Plaintiff-Appellant, v. James E. BAIRD, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 927

283 P.2d 927

76 Idaho 422

Dayton RAFF, Plaintiff-Appellant, v. James E. BAIRD, Defendant-Respondent.

No. 8230.

Supreme Court of Idaho.

May 13, 1955.

Thos. Y. Gwilliam, Nampa, for appellant.

J. Blaine Anderson, Blackfoot, for respondent.

TAYLOR, Chief Justice.

Plaintiff (appellant) brought this action to recover for materials furnished and labor performed in the construction of a house being built by defendant in Blackfoot. The complaint is in the usual form, alleging that the materials were furnished and the labor performed 'at the special instance and request' of the defendant between the 8th day of November, 1952, and the 20th day of January, 1953.

As an affirmative defense the defendant (respondent) alleges that on or about the 8th day of November, 1952, plaintiff and defendant entered into an oral agreement whereby it was agreed that defendant and his wife would sell and plaintiff would buy the land upon which the house was being constructed, with the completed house, for a total consideration of $11,600; that the agreement was partially performed by the parties, that is, the defendant proceeded with the construction and made certain alterations in the original plumbing plans and lay-out, to conform to the wishes of plaintiff; proceeded to arrange with the Blackfoot Branch of the First Security Bank of Idaho for a loan, pursuant to the agreement, whereby plaintiff was to procure funds for the payment of the purchase price. Plaintiff, as a down payment thereon, agreed to install for the defendant, free of cost for labor and materials, two oil furnaces: one in the dwelling house sold to plaintiff, and one in another house to be constructed by defendant. Also, as a part of the down payment, plaintiff agreed to paint the house being sold to him. Plaintiff partially installed one of such furnaces and applied the primer coat of paint. Defendant also alleges that on or about November 14, 1952, acting in reliance upon the oral agreement and pursuant thereto, the defendant and his wife made, executed, acknowledged and delivered to the said bank their warranty deed conveying the house and lot to plaintiff. A copy of the deed is annexed to the answer. It recites a consideration of $11,650. No affidavit was filed by the plaintiff denying the genuineness and due execution of the deed, which are therefore deemed admitted. § 5-704, I.C. Defendant further alleges that on or about January 20, 1953, the plaintiff repudiated the agreement and refused to perform same, although the defendant had substantially performed all conditions precedent on his part, and although he and his wife were then ready, willing and able to perform.

Except for the admission of the genuineness and due execution of the deed, the allegations of the affirmative defense are deemed denied by plaintiff. § 5-812, I.C. From plaintiff's evidence, it appears plaintiff had moved from Nampa, Idaho, to Blackfoot to engage as a partner with his brother-in-law in the business of heating and sheet metal work; that he was employed by defendant to install the heating plant and to paint the house in question. He detailed the materials furnished, the hours worked, and rate of pay. Defendant proposed that plaintiff buy the house being constructed. Plaintiff responded that he had no money for a down payment, but that if he could do certain work for a down payment, and if the bank would make a loan for the balance, he would take the house. About January 20, 1953, a disagreement arose between partners, as a result of which plaintiff withdrew and returned to Nampa. Before leaving Blackfoot plaintiff advised defendant of his decision to abandon the contemplated purchase, and in a conference between the parties and plaintiff's brother-in-law it was agreed that the brother-in-law would finish the installation of the heating plant begun by the plaintiff. Later the brother-in-law billed plaintiff for work and materials required to complete the job. Plaintiff testified that he went to the bank and made application for the contemplated loan, but that his application had not been acted upon by the bank before he left Blackfoot.

In October, 1953, and prior to the commencement of this action, the defendant sold the house and lot to a third party for $11,600. There is conflict in the testimony of the purchaser as to the sale price. On direct examination he testified he conveyed to the defendant certain real property of the agreed value of $2,600, subject to a mortgage for $400, which defendant assumed and agreed to pay; and that he obtained a loan on the house and lot purchased, of $9,400, the proceeds of which went to defendant. On cross-examination he stated that the defendant would receive only $1,800 in value by the transfer to him of the other property; and then, on further cross-examination, he stated that the total consideration paid by him was $11,600.

Apparently the nonsuit was based upon the theory that plaintiff, being in default and having repudiated his contract to purchase the property, could not recover for materials furnished and labor done by him as a down payment thereon. Among other authority, respondent relies upon Williamson v. Wilson, 56 Idaho 198, 52 P.2d 138, and Nelson v. Altizer, 65 Idaho 428, 144 P.2d 1009.

In the Williamson case the court held a contract for the sale of community property, in which the wife did not join, was not invalid where a deed, executed and acknowledged by both husband and wife, was placed in escrow with the contract, and all parties and their assignees knew that the deed was so executed and held. The contract in that case was complete and certain in all essentials and fully complied with the statute of frauds. The grantees had held possession for over eleven years. The...