Slusser v. Aumock

• Decision Date: 08 July 1936
• Docket Number: 6291
• Citation: 56 Idaho 793,59 P.2d 723
• Parties: JOHN G. SLUSSER, Respondent, v. LEW AUMOCK, Appellant
• Court: Idaho Supreme Court

59 P.2d 723

56 Idaho 793

JOHN G. SLUSSER, Respondent, v. LEW AUMOCK, Appellant

No. 6291

Supreme Court of Idaho

July 8, 1936

STATUTE OF FRAUDS-PLEADING-APPEAL AND ERROR-ASSIGNMENTS OF ERROR SUFFICIENCY OF-EXCEPTIONS, FAILURE TO MAKE IN LOWER COURT-HARMLESS ERROR-TRIAL-INSTRUCTIONS-BURDEN OF PROOF.

1. Defense of statute of frauds held waived where complaint in action for purchase price of silver black foxes alleged contract generally and it did not appear therefrom that contract was within statute and defendant failed to plead statute as a defense (I. C. A., sec. 16-505, subd. 4).

2. Remarks of trial court not excepted to will not be reviewed by Supreme Court.

3. General assignments specifying that trial court erred, or that evidence is insufficient without pointing out the particulars of insufficiency, are too indefinite to merit consideration.

4. Where evidence was amply sufficient to support larger verdict than that returned by jury for plaintiff, defendant could not complain that jury returned verdict for less amount than plaintiff alleged to be due.

5. In action to recover purchase price of silver black foxes refusal of instructions on burden of proof held not error where trial court instructed that burden was on plaintiff to prove by preponderance of evidence material allegations of his complaint not admitted by defendant.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Gillies D. Hodge, Presiding Judge.

Action on contract to recover purchase price of personal property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

P. E Stookey and Ben F. Tweedy, for Appellant.

It is declared law that respondent had right only to prove the facts as alleged in his amended complaint and proof of facts not alleged, which establishes a different contract than that alleged, constitutes a fatal variance and must, as a matter of law, be held to be prejudicial to the appellant. (Nichols v. Randall, 136 Cal. 426, 69 P. 26; San Francisco etc. Co. v. Associated etc. Co., 137 Cal.App. 117, 29 P.2d 890-893; 49 C. J., secs. 1187-1190, pp. 804-810.)

J. H. Felton, for Respondent.

When the complaint is sufficient and is generally or specifically denied, the statute of frauds must be specifically pleaded, otherwise it is waived. (Bevercombe v. Denney & Co., 40 Idaho 34, 231 P. 427; Magee v. Winn, 52 Idaho 533, 16 P.2d 1062.)

HOLDEN, J. Givens, C. J., and Budge and Morgan, JJ., concur. Ailshie, J., did not sit at the hearing nor participate in the opinion.

OPINION

HOLDEN, J.

Appellant was engaged in the business of raising and selling fur-bearing animals. November 6, 1926, by written contract, appellant sold respondent a pair of blue fox pups. Under the terms of the contract, appellant agreed to "ranch" the foxes for a stated period for one-half of the increase. Some time after the making of that contract, respondent traded the blue foxes and two pairs of mink to appellant for a pair of silver black foxes. The silver black foxes, at the time of the trade, were owned by, and in the possession of, appellant. This action was brought by respondent against appellant to recover the alleged purchase price of said silver black foxes, claimed by respondent to have been sold by him to appellant following the above-mentioned trade.

In his amended complaint respondent alleges "That on or about the 16th day of July, 1932, the plaintiff sold and delivered to the defendant, at his request, one pair of Silver foxes, the same being the identical foxes which the defendant had previously traded to the plaintiff in exchange for the Blue foxes mentioned in the contract between the parties, entered into on the 6th day of November, 1926, for the sum of Nine Hundred Fifty Dollars ($ 950.00)"; that the defendant promised to pay therefor to plaintiff the said sum of $ 950.00, said amount being due and payable on the date of the sale and delivery; that defendant had not paid the same, nor any part thereof, except the sum of $ 25.

Appellant denied each and every allegation of the complaint, and as an affirmative defense, alleged as follows: That on October 30, 1928, appellant and respondent made an agreement (not written) whereby appellant was to "ranch" and board a pair of silver black foxes, alleged to have been owned by, and to belong to, the respondent (being the same pair of silver black foxes traded by appellant to respondent), for one-half of the increase; that appellant fully performed the terms and conditions of the contract to be done and performed on his part; that from August 15, 1929, up until the commencement of this action, respondent refused to take possession of said foxes, but left them with appellant; that, therefore, appellant was compelled to, and did, "ranch," board and care for the foxes from August 15, 1929, to May 8, 1935; that such "ranching, " boarding and care was reasonably worth the sum of $ 576.80, no part of which had been paid.

It seems to have been conceded by both parties, upon the trial of the cause, that respondent traded to appellant a pair of blue foxes and two pair of mink, for the silver black foxes mentioned in the complaint, it being the contention of respondent that following the trade he sold the foxes to the appellant for the sum of $ 950, and it being contended by appellant, on the other hand, that respondent left the animals with him to be "ranched" and boarded for a stated period, for which he was to receive one-half of the increase. The jury returned a verdict in favor of respondent for the sum of $ 807. Judgment was thereupon entered for that amount, from which, and from an order denying a new trial, appellant appeals.

Numerous errors are assigned which serve to present for determination two questions, which are controlling: 1. Is the defense of the statute of frauds (subd. 4 of sec. 16-505, I. C. A.) waived where it does not appear from the complaint that the contract sued upon falls within the statute, and the party relying upon the statute as a defense, fails to plead it? 2. Must a party asserting that remarks of a trial judge were prejudicial, object to the remarks complained of, to entitle him to have the same reviewed by this court?

This court held in Bevercombe v. Denney &amp Co., 40 Idaho 34, 39, 231 P. 427 (approved and adhered to in Magee v. Winn, 52 Idaho...