Sebree v. Smith

• Decision Date: 25 February 1888
• Citation: 16 P. 915,2 Idaho 359
• Parties: SEBREE ET AL. v. SMITH
• Court: Idaho Supreme Court

16 P. 915

2 Idaho 359

SEBREE ET AL. v. SMITH

Supreme Court of Idaho

February 25, 1888

EVIDENCE.-Offers of settlement of a suit not accepted are not admissible against the party making them on the trial of the action.

EXCEPTIONS-SETTLEMENT OF, BY JUDGE AFTER TRIAL.-An agreement of parties to an action on trial, appearing in the record, that exceptions taken at the trial may be settled at another time, is sufficient to authorize the trial judge to settle a bill of exceptions or statement after the trial.

PLEADINGS-SECTION 4841 CONSTRUED.-Under section 4841 the district court may allow amendments to the pleadings in an action appealed from the justice or probate court.

ORAL STIPULATIONS OF ATTORNEYS-COURT WILL NOT CONSIDER UNLESS IN OPEN COURT.-The court will not attempt to determine the nature or effect of disputed oral stipulations of litigants or attorneys affecting the rights of parties or the conduct of the trial, and it will not enforce such stipulations unless the attorneys agree in open court as to what they are nor will they be considered on appeal, unless they are made a part of the record.

CLAIM AND DELIVERY-DAMAGES FOR USE OF-MEASURE OF DAMAGES.-In an action of claim and delivery, where the property sought to be recovered is valuable for use aside from its intrinsic value and the prevailing party claimed damages for the loss of its use in his pleadings, the measure of damages is the value thereof and the reasonable value of its use during its detention. In determining value of its use, the taxes which the prevailing party would have paid had he retained possession thereof and the usual and ordinary risk incident to the possession thereof should be considered.

ATTORNEYS AS WITNESSES FOR CLIENT.-Attorneys should offer themselves as witnesses for their clients only in case of extreme necessity.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

Reversed and remanded.

Kingsbury & McGowan, for Appellants.

Any implied admission of liability in an offer to settle a suit cannot be given in evidence against the party making the offer. (Marsh v. Gold, 2 Pick. 290; Laurence v Hopkins, 13 Johns. 288; Rideout v. Newton, 17 N.H. 71; Perkins v. Railroad Co., 44 N.H. 223; Gerrish v. Sweetser, 4 Pick. 374; Batchelder v. Batchelder, 2 Allen, 105; Saunders v. McCarthy, 8 Allen, 42; Harrington v. Lincoln, 4 Gray, 563, 64 Am. Dec. 95; Gay v. Bates, 99 Mass. 263; Durgin v. Somers, 117 Mass. 55.) Even where the offer is made under the statute, and admits as a fact there is an amount due, it cannot be given in evidence. (Code, secs. 606, 678.)

A. F. Montandon, for Respondent.

For the breach of an obligation not arising from contract, the measure of damages is the amount which will compensate for all the detriment proximately caused thereby. (Code Civ. Proc., sec. 4453; Sedgwick on Damages, 4th ed., p. 88, and note; Boyle v. Case, 18 F. 800.) The value is the proper rule in the case in hand. (Butler v. Mehrling, 15 Ill. 488; Kenyon v. Goodall, 3 Cal. 257; Allen v. Fox, 51 N.Y. 562, 10 Am. Rep. 641; Williams v. Phelps, 16 Wis. 80; Crabtree v. Clapman, 67 Me. 326; Elder v. Frevert, 18 Nev. 446, 5 P. 69.) When the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other. (Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119, and note; Clow v. Woods, 5 Serg. & R. 275, 9 Am. Dec. 346.)

BUCK, J. Hays, C. J., and Broderick, J., concur.

OPINION

BUCK, J.

Action of replevin brought to recover two mules. Originally there were two actions, one for each mule, but they were consolidated on the trial by the consent of parties. The action was commenced in the probate court of Alturas county, and thence taken by appeal to the district court. It was tried in the district court, at the June term thereof, 1887, and judgment rendered for the defendant. Motion for a new trial was made and overruled, and an appeal taken to this court from the judgment and from the order overruling the motion for a new trial. The appeal from the order overruling the motion for a new trial was dismissed, on the ground that no undertaking had been filed as required by statute, and the cause now to be considered is on the appeal from the judgment alone.

In the district court the defendant was allowed to amend his answer on terms, under objection by the plaintiffs, to which ruling the plaintiffs excepted, and which they have specified as error. Section 4841 of the Code of Civil Procedure, provides that the district court has the same power to grant amendments on appeal from probate and justices' courts that it does in suits commenced in the district court. It is also claimed that said amendment was contrary to the stipulation of parties when the consolidation of the two actions was made; and affidavits are sent up in the transcript to prove such stipulation. No stipulation of the kind appears in the record of the case, and this court cannot go outside of the record to consider affidavits to prove oral stipulations of the parties. Such stipulations when made should be entered of record, or reduced to writing and filed with the other papers in the case. The amendment was within the discretion of the court, and properly allowed.

The appellants specify as error the refusal of the court to strike out the evidence of A. F. Montandon, attorney for defendant, who was sworn as a witness on behalf of his client. The evidence objected to is as follows: "Mr Holt came to my office, and offered to return the mules to Smith, if he wanted to dismiss the suit." This evidence was given by the witness without any warning of its character, and the attorney for plaintiffs had no opportunity to object to it before it was given. He immediately moved that it be stricken out as "testimony showing an offer of settlement," which motion was overruled, and exception noted. The overruling of the motion to strike this evidence out is assigned as error. In the case of Connolly v. Straw, 53 Wis. 645, 11 N.W. 17, referring to the practice of attorneys appearing as witnesses in behalf of their clients, the court says: "As a general rule, no doubt, attorneys should not be witnesses for their clients. The sentiment of the profession is against it, and for very satisfactory reasons; yet cases may arise, and in practice often do arise, in which there would be a failure of justice should the attorney withhold his testimony. In such a case it would be a vicious professional sentiment which would deprive the client of the benefit of his attorney's testimony. The attorney will decide for himself whether he ought to become a witness. If he resolves the question in the affirmative, a nice sense of professional propriety will no doubt prompt...