Salisbury v. Spofford

• Decision Date: 28 August 1912
• Parties: ROSA B. SALISBURY, Respondent, v. JUDSON SPOFFORD, Appellant
• Court: Idaho Supreme Court

126 P. 400

22 Idaho 393

ROSA B. SALISBURY, Respondent, v. JUDSON SPOFFORD, Appellant

Supreme Court of Idaho

August 28, 1912

COMPLAINT-DEMURRER TO-FINDINGS-SUFFICIENCY OF EVIDENCE-CONTRACT-CONSTRUCTION OF-PROCEEDS-MEANING OF-CONFLICT IN EVIDENCE.

(Syllabus by the court.)

1. Held, that the court did not err in overruling the demurrer to the complaint.

2. Under the provisions of sec. 2676, Rev. Codes, all property of the wife acquired after marriage by gift is her sole and separate property.

3. Under the provisions of sec. 2677, a married woman is given the absolute control of her separate estate, which includes the right to bring an action for the protection of her separate property.

4. Held, that the evidence is sufficient to sustain the findings.

5. Where a contract provides that a certain payment is to be made "out of the proceeds" of a certain crop of oats, held, that such payment must be made out of the entire proceeds of the sale and is not limited to the net proceeds thereof.

6. Held, that where a contract provides that a certain payment shall be made after "the entire crop of said lands shall have been harvested and marketed," that such provision fixes the time of pay- ment and was not intended to limit the payment to the proceeds of the crop.

7. Where there is a substantial conflict in the evidence, the findings of the court will not be disturbed.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to recover balance due on a written contract. Judgment for the plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Charles F. Reddoch, for Appellant.

Conceding that the husband could make a gift of the contract here sued upon, the law requires that the transfer, whether gift or donation or exchange, shall be such as to clearly deprive the husband of his interest. (Ballinger, Community Property secs. 55, 154.)

If the thing given be a chose in action, the law requires an assignment or equivalent instrument and the transfer must be actually executed. (Dilts v. Stevenson, 17 N.J. Eq 407; George v. Spencer, 2 Md. Ch. 353; Lane v. Lane 76 Me. 521.)

The word "marketing" as used in the contract certainly meant selling, and it was incumbent upon the plaintiff to prove that the oat crop was marketed and that the proceeds of the sale amounted to at least $ 50 before she could recover. (Wheeler & Wilson Mfg. Co. v. Winnett, 3 Neb. (Unof.) 293, 91 N.W. 514.)

Harry S. Kessler, for Respondent, cites no authorities.

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to recover a balance alleged to be due upon a contract in writing, entered into between the respondent and her husband and the appellant, by which appellant, in consideration of respondent and her husband relinquishing a former lease to certain real estate, promised to pay the sum of $ 100, $ 50 at the time of marketing the oat crop raised on said land out of the proceeds thereof, and $ 50 to be paid after the entire crop upon said land had been harvested and marketed.

It is alleged in the complaint that the appellant had paid only $ 36.50 upon the first-mentioned $ 50 out of the proceeds of the oat crop, and that nothing whatever had been paid on the other $ 50 mentioned, and respondent demanded judgment for $ 63 and interest, claiming that to be the balance due on said contract. It is alleged in the complaint that the plaintiff's husband had assigned, transferred and given to plaintiff all of his right, title and interest in and to said contract and that the amount due thereon was her sole and separate estate.

To this complaint the appellant filed a demurrer based upon several grounds, only one of which is urged on this appeal. The demurrer was overruled by the trial court and an answer was filed denying generally the allegations of the complaint, and alleging by way of setoff that the respondent and her husband had wrongfully appropriated some cordwood belonging to the appellant of the value of $ 84. On the trial the plaintiff admitted that there was due the defendant for wood $ 10.50, and judgment was rendered in her favor for $ 53 and interest, that being the balance after deducting said $ 10.50. The appeal is from the judgment.

This case was first tried in a justice's court, and judgment was rendered against the appellant. He thereafter appealed to the district court,...