Ridenbaugh v. Thayer

• Decision Date: 27 February 1905
• Citation: 10 Idaho 662,80 P. 229
• Parties: RIDENBAUGH v. THAYER
• Court: Idaho Supreme Court

80 P. 229

10 Idaho 662

RIDENBAUGH v. THAYER

Supreme Court of Idaho

February 27, 1905

SPECIFIC PERFORMANCE.

1. Where it is shown by the complaint, which is not denied, that by written contract T. agreed to furnish R. at a place named in the contract two thousand five hundred cords of wood, R to furnish all money necessary to chop, haul, boom and deliver such wood; that in pursuance of such contract R. did at all times, comply with all the terms and conditions of the contract; that after the delivery of two hundred and fifty cords of wood by the administratrix of the estate of T. and after such administratrix had agreed to carry out the terms and conditions of such contract, she refused to further comply with the contract unless R. would release five hundred cords of such wood from delivery to R., he having furnished her large sums of money to complete the contract of T., held that a decree for specific performance will be enforced in a court of equity.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Action to enforce specific performance of a contract. Judgment for plaintiff, from which defendant appeals. Judgment affirmed.

Judgment affirmed, with costs to respondent.

S. L. Tipton, Karl Paine and Charles M. Kahn, for Appellant.

All the authorities cited in their brief are cited and commented on in the opinion.

Fremont Wood, for Respondent, cites no authorities not found in the opinion.

STOCKSLAGER, C. J. Sullivan, J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, C. J.--

The plaintiff commenced his action in the district court of Ada county to compel the specific performance of a certain contract alleged to have been entered into between plaintiff, doing business as the Shaw Lumber Company and Orin Thayer. The contract was in writing; a copy of it is exhibit "A" to plaintiff's complaint herein, and is dated the fifth day of October, 1903.

It is next shown by the complaint that on or about May 23, 1904, Orin Thayer died intestate, and thereafter, about June 15, 1904, the defendant in this action was appointed administratrix of his said estate by the probate court of Ada county, and that said letters of administration have never been revoked.

The fourth allegation of the complaint is that said Orin Thayer, in accordance with the terms of the contract, proceeded to procure the necessary cordwood along Moores creek and Grimes creek in Boise county, Idaho; that said wood was procured by said Thayer by purchase, cutting and removal, and the plaintiff, during the lifetime of said Thayer, advanced for the use of said Thayer for carrying on the work of chopping, purchasing and securing said wood, the sum of $ 4,500, the same being the amount demanded by said Thayer for said work; that at the time of the death of said Thayer said wood was in the timber where cut and it became necessary to move the same in order to utilize the high water in Grimes creek and Moores creek for running said cordwood; that after the death of said Thayer it was agreed between plaintiff and said defendant, both in her personal capacity and afterward in her representative capacity as administratrix, that the terms of said written contract should be carried out, and said cordwood cut and procured as aforesaid, delivered under the terms of said contract to plaintiff, and in pursuance of said last-mentioned agreement and understanding between plaintiff and defendant, this plaintiff has advanced for the account of said defendant in hauling and driving said cordwood, the sum of about $ 4,250, making in the aggregate the sum of $ 8,750 advanced by plaintiff under said contract, but plaintiff is informed and believes, and therefore, on his information and belief, alleges, that there is less than two thousand cords of wood subject to delivery under said contract, and that he has already paid more than the contract price therefor.

The fifth allegation is that plaintiff has well and truly kept and performed each and every provision of the contract on his part; nevertheless, defendant, after commencing the delivery of said wood in the yard of this plaintiff, had caused the delivery thereof to be stopped, and had demanded of plaintiff that he release from the terms of said contract five hundred cords of said wood, and upon the refusal of plaintiff to consent to said release, and after plaintiff had paid all of said money on said contract price, said defendant had refused to deliver more wood, has abandoned the said wood drive in the Boise river, and is now permitting the same to gather and accumulate in great quantities against plaintiff's boom in said river and in other places along said river, and unless given immediate protection and removed from said boom and cared for, the said boom will be broken and said cordwood will become nearly a total loss.

The sixth allegation is that under and in accordance with said contract plaintiff furnished the boom provided for therein, and the same is anchored upon the Boise river near the foot of Eighth street, in Boise City, but said defendant, through her agents, has taken possession of said wood and said premises and refuses to protect or permit plaintiff to protect the same, and defendant also refuses to run said wood or permit this plaintiff to run the same, and deliver the same into his yard, although plaintiff has offered to care for and haul, or assist in hauling said wood.

The seventh allegation is that about two hundred and fifty cords of said wood have been delivered in the yard according to said contract; that between three hundred and four hundred cords are now against and in the immediate vicinity of said boom, and the remainder of said wood, about thirteen hundred or fourteen hundred cords, between said boom and a point about seven miles up the Boise river.

The eighth allegation is that at noon on the 30th inst. defendant stopped all work upon said wood drive, and the wood in the river is now entirely unprotected except by the boom aforesaid; that said boom will give way in case of a slight rise in the river, which is liable to occur at any minute, either from showers or from lowering of water in the irrigating ditches, where the diversion points are above said boom, and unless said boom is given almost immediate attention and said wood removed, the same will go out and said wood become a total loss. Plaintiff is informed and believes, and therefore upon information and belief alleges, that the banks near the northern anchorage of said boom have commenced to wash and that the piers holding said boom have commenced to settle on account of the great pressure thereon, and unless said wood is immediately removed, said boom will wash out and said wood pass down the river beyond the control of either of the parties hereto.

The ninth allegation is that plaintiff has offered to incur all expenses of running, driving, holding and removing said wood in addition to the payments already made, but defendant has declined to permit plaintiff to in any way interfere with, have or protect said wood, etc.

The tenth allegation is that the estate of Orin Thayer now is, and was at the time of his death, insolvent, and defendant, administratrix, personally and in her representative capacity, is insolvent and unable to respond in damages for failure to deliver said wood, and for that reason plaintiff avers that he has no plain, speedy or adequate remedy at law; that unless compelled by an order of this court to immediately deliver said wood and protect and care for the same, now in the Boise river, said wood will become a total loss and plaintiff will suffer great and irreparable injury thereby. Plaintiff then tenders and offers with his own teams and his own men to complete the driving of said wood at the actual cost thereof, and to pile said wood in his yard in separate piles so that the wood now undelivered may be kept segregated from all other wood.

The eleventh alleges that the writ of replevin or claim and delivery would be unavailing herein on account of the great expense which would necessarily be incurred by an officer in gathering up, hauling and caring for said property, and on account of the insolvency of said estate said expense would be an additional expense account and all fall upon the plaintiff without any recourse therefor upon the defendant.

This complaint is followed by a prayer for specific performance, and an order of injunction compelling defendant, her agents and attorneys, to drive, boom and deliver said cordwood, and upon their failure so to do to permit plaintiff, his agents and attorneys together, to drive, boom and deliver said wood.

Exhibit "A" provides that Orin Thayer, for and in consideration of the promises and agreements of said Shaw Lumber Company hereinafter set forth, agrees to deliver to said Shaw Lumber Company in the summer of 1904, as soon as the season and the state of the water in the Boise river and its tributaries will permit, two thousand five hundred cords of wood, more or less, the same cut from live timber, four feet long and convenient size, from pine or fir. Said cordwood to be in all respects good, sound, smooth, straight, merchantable wood. Said cordwood and the whole thereof is to be delivered and corded in straight, compact piles, ten feet four inches high, in the yard of said Shaw Lumber Company, in Boise, Idaho four inches to be allowed for settling.

"In consideration of the foregoing, the said Shaw Lumber Company agreed to pay the said Orin Thayer the sum of $ 4.25 per cord of one hundred and twenty-eight feet--cubic--as follows: The said Shaw Lumber Company is to advance for the use of said Thayer such sum of money as may be necessary, ...