Sanchotena v. Tower Co.

• Citation: 74 Idaho 541,264 P.2d 1021
• Decision Date: 28 December 1953
• Docket Number: No. 7943,7943
• Parties: SANCHOTENA v. TOWER CO. et al.
• Court: United States State Supreme Court of Idaho

Page 1021

264 P.2d 1021

74 Idaho 541

SANCHOTENA v. TOWER CO. et al.

No. 7943.

Supreme Court of Idaho.

Dec. 28, 1953.

Nielson & Nielson, Burley, Rayborn, Rayborn & Kramer, Twin Falls, for appellants.

Herman E. Bedke, Burley, for respondent.

THOMAS, Justice.

Appellants, hereinafter referred to as defendants, appealed from an order of the court below granting the motion of respondent, hereinafter referred to as plaintiff, for a new trial.

The action was instituted by plaintiff to recover damage to his corps in the sum of $8310 claimed to have been suffered by reason of the defendants' having failed to deliver a pump that would pump 200 miner's inches of water from the Snake River to his farm lands located west of Burley in Cassia County, Idaho.

Plaintiff was entitled to pump 250 miner's inches of water for irrigation purposes upon his lands from the Snake River when such water was available during the irrigation season. In the month of December, 1950, he negotiated with defendants for the purchase of and did purchase from them a pump for the purpose of pumping water from said river for such irrigation purposes; defendants contracted to deliver a pump on or about March 1, 1951, which would pump 200 miner's inches of water from said river upon the lands of plaintiff; plaintiff was not familiar with or informed with respect to pumps of this nature and so advised defendants and stated to them that he would rely upon them in selecting and installing a pump which would meet his needs; plaintiff agreed to pay defendants $1100 for the pump; that payment of $375 was made at the time the contract was entered into and the balance though due and payable was not paid at the time the action was started.

In reliance upon the agreement, and with full knowledge by defendants of the plaintiff's plans to prepare the lands and plant crops, plaintiff did timely prepare and plant approximately 120 acres of grain in the spring of 1951 with the expectation that water would be delivered upon the land when needed through operation of the pump which he had purchased; on or about April 26, 1951, defendants installed the pump upon the premises of plaintiff; thereupon plaintiff turned it on and it would not deliver in excess of 75 miner's inches of water; within a few days the flow decreased to approximately 30 inches; defendants were notified and made several trips to the farm in an attempt to determine the trouble and correct it; little or no improvement was made in connection with the flow of the water until on or about June 16, 1951, at which time a new impeller was installed and thereafter the pump delivered not in excess of 164 inches of water; there was evidence that the crops planted suffered from the lack of sufficient water to properly mature them even though plaintiff was diligent in the application of water upon the lands after the new impeller was installed.

Defendants answered the complaint and filed a counterclaim for the balance of the purchase price in the sum of $725 and $52.82 for the cost of a new impeller.

The matter was tried before a jury which returned a verdict for plaintiff in the sum of $1318 and a verdict for defendants on their counterclaim in the sum of $777.82 and judgment was accordingly entered for plaintiff in the sum of $540.18 together with costs.

Thereafter plaintiff made a motion for a new trial upon the following grounds: (1) Accident or surprise, which ordinary prudence could not have guarded against. (2) Newly discovered evidence material for the plaintiff, which he could not, with reasonable diligence, have discovered and produced at trial. (3) Insufficiency of the evidence to justify the verdict. (4) Error in law, occurring at the trial, and excepted to by the plaintiff.

After considering the motion the court made an order granting a new trial upon the ground the evidence was insufficient to justify the verdict. From such order this appeal is taken.

The appeal presents the question of whether the trial court abused its legal discretion in granting a new trial. When a motion for a new trial is granted every reasonable presumption in support of the order is indulged and unless it is made to affirmatively appear from the record that the court has abused such discretion the order granting a new trial will be sustained.

Where a motion for a new trial is based on numerous grounds and it is granted in general terms, without setting forth the grounds upon which it is granted, it will not be reversed upon appeal if it can be justified on any of the grounds upon which the motion was made. Hall v. Johnson, 70 Idaho 190, 214 P.2d 467; Tidd v. Northern Pacific Ry. Co., 46 Idaho 652, 270 P. 138; Turner v. First Nat. Bank of Bancroft, 42 Idaho 597, 248 P. 14; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852; 66 C.J.S., New Trial, § 210(3), page 541.

On the other hand, if the court in the order granting a new trial expressly states the grounds upon which it is granted this court on appeal will determine the appeal upon the issue of whether the particular ground stated would justify the granting of the motion. Idaho Gold Dredging Corp. v. Boise Payette Lumber Co., 52 Idaho 766, at page 778, 22 P.2d 147; see also Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682; Mendez v. Moya, 54 Ariz. 44, 91 P.2d 870; 66 C.J.S., New Trial, § 210(4), page 542.

In this connection the record discloses that the court granted the motion solely upon the ground that the evidence was insufficient to support the verdict. In the motion for new trial plaintiff urged that the evidence was insufficient to support the verdict for the reason that it was inconsistent and contradictory because it was first necessary for the jury to conclude that there was a breach of warranty before any award of damages could be made to plaintiff; that the jury having necessarily concluded that there was a breach of warranty in order to bring in any verdict for plaintiff it is urged that plaintiff should not have been required to pay the full purchase price of a pump which would pump 200 inches of water when he did not receive such a pump; that if defendants were to recover anything whatever upon their counterclaim it should have been the reasonable value of a pump that would pump not in excess of 164 inches of water.

The contention of plaintiff briefly stated is simply this: that the verdict rendered presents the inescapable conclusion that the jury concluded there was a breach of warranty but, even so, in their verdict they found for defendants for the full amount of the unpaid balance of the purchase price of a pump which he contracted to purchase but which defendants did not deliver.

The plaintiff elected to retain the pump as he might do, sec. 64-507, subd. 1(b), I.C., and bring an action against defendants for damages for the breach of warranty of quality. Generally, under such circumstances the measure of damages is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. Sec. 64-507, subd. 7, I.C. Additionally, the buyer would be entitled to recover any special damages, such as loss of crops, adequately alleged and proved.

A thorough and painstaking examination and study of the record discloses that there is neither allegation nor proof with respect to the value of the pump at the time of delivery; moreover, the complaint seeks damages only for the loss of crops; upon a conflict in the evidence damages were awarded for loss of crops; the jury without pleading or proof could not bring in a verdict for the difference between the value of the pump at the time it was delivered to plaintiff and the value it would have had if it had answered to the warranty.

This court is firmly committed to the rule that a trial court possesses a discretion to be wisely exercised in granting or refusing to grant a new trial and that such discretion will not be disturbed on appeal unless it clearly appears to have been exercised unwisely and to have been manifestly abused. Baldwin v. Ewing, 69 Idaho 176, 204 P.2d 430; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142; Riggs v. Smith, 52 Idaho 43, 11 P.2d 358.

Such discretion must be a sound judicial discretion founded upon reason arising out of the law and the evidence in the particular case. Baldwin v. Ewing, supra. This power to either grant or refuse a new trial is statutory but is not absolute. Where, as here, there is a total failure of proof of evidence of the value of the pump delivered, there is no basis furnished for the exercise of such discretion. A new trial granted on the insufficiency of the evidence in this respect would constitute an abuse of judicial discretion.

The notice and specification in support of the motion for a new trial also asserts that the evidence was insufficient to justify the verdict in that the amount of damages awarded plaintiff was inadequate because it was equivalent to the loss of 6 bushels per acre on 120 acres at $1.83 per bushel; that the lowest estimate of the capability of the land to produce with an adequate supply of water, according to the evidence, was 35 bushels to 40 bushels per acre; that it yielded 1660 bushels. This is in substance a contention that the jury found against the evidence by awarding inadequate recovery. This comes under the statutory ground of the insufficiency of the evidence to justify the verdict. Riggs v. Smith, 52 Idaho 43, 11 P.2d 358; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142.

The evidence in reference to the damage to the crops although conflicting in some respects briefly establishes the following: there was a good stand of grain on the land on May 1, 1951; it was suffering from the lack of water on May 15, 1951; on or about June 1st of that year it had thinned out and was dry and the ground hard; on or about June 15, 1951, the grain had headed out and was only about a foot high with only a few kernels in each head except on a...