Smith v. Cooper
| Decision Date | 25 June 1952 |
| Docket Number | No. 7771,7771 |
| Citation | 73 Idaho 99,245 P.2d 816 |
| Parties | SMITH v. COOPER. |
| Court | Idaho Supreme Court |
William J. Dee, Grangeville, for appellant.
Paul G. Eimers, Grangeville, for respondent.
Smith, hereinafter referred to as the appellant, brought action against Cooper, hereinafter referred to as respondent, in claim and delivery to recover possession of certain sawmill machinery and equipment, based upon asserted ownership and breach of contract under which respondent was allegedly placed in possession.
The property was seized under Writ by the Sheriff on March 16, 1948.
Respondent filed an answer and crosscomplaint, alleging ownership, the right to possession and the wrongful seizure and retention by appellant. Appellant answered the cross-complaint, and upon issue joined the matter was tried before the court without a jury.
At the conclusion of the appellant's case, upon motion, a nonsuit was granted, and the court then proceeded to hear the testimony in support of and opposition to respondent's cross-complaint. The court, subsequent to the conclusion of all the testimony, and on December 12, 1950, made findings and conclusions and entered judgment for respondent on his cross-complaint in the sum of $1750 for the value of the property seized, and $2000 damage for the wrongful possession and retention thereof from March 16, 1948.
The appeal is from the judgment.
While the appellant has made some ten assignments of error, when properly grouped they may be treated and considered as error in entering judgment of nonsuit against the appellant and the insufficiency of the evidence to support the findings or judgment on the cross-complaint.
The evidence is voluminous and in several material respects is in sharp conflict, particularly with reference to the ownership of the property seized.
The original negotiations between the parties occurred just prior to May 8, 1946, and on that date they entered into a written contract which on its face appears to be a sales agreement, for the sale by appellant and purchase by respondent of certain of the property involved in this action and replacements and additions thereto. Respondent testified that he purchased a sawmill and machinery from a third person in Oregon, without knowledge that it was encumbered by a mortgage in the amount of $1050; that in order to save the property appellant advanced respondent $1050 and took title but not possession of the property, as security for the money so advanced and further sums that might be advanced under a contract which respondent introduced in evidence.
The contract provided that respondent would saw lumber for appellant at the unit price of $12 per thousand feet and $4 per cord for cord wood and would cut timber for appellant, the unit price not being provided for in the agreement. Appellant testified that the unit price for cutting was $5 per thousand board feet, while the respondent testified that the unit price for this service was $7.50 per thousand board feet. It is further provided therein that the appellant would furnish the sawmill and equipment, the subject matter of this action, and that respondent would pay as rental therefor, the unit price of $6 per thousand feet and upon full compliance and when the rental payments shall amount to $1050 with interest at six percent and all advances have been repaid, appellant would deliver a bill of sale for the equipment to respondent. Otherwise the contract shall become null and void.
Respondent testified as to the total footage he sawed for appellant, and this was admitted by appellant; he also testified as to the total footage he logged for appellant and that the agreed price was $7.50 per thousand. Appellant testified that there was less footage logged than as testified to by respondent, and testified that the unit price was $5.00 a thousand; there was sharp conflict in the evidence as to the mutual and reciprocal charges and credits throughout the operations in Oregon.
Late in October, 1947, the lumbering operations of the appellant and the mill and equipment were moved into Idaho, and on October 20, 1947, the parties entered into the following written contract with reference to certain standing timber belonging to appellant:
'October 20, 1947
'Logging and Lumbering Contract.
'This agreement made and entered into this 20th day of October 1947 by and between A. R. Cooper, * * *. hereinafter known as party of the first part. and L. R. Smith hereinafter known as party of the second part.
'Witnesseth: For the sum of $27.00 per thousand feet, lumber scale first party agrees to log, saw, haul and pile in second party's lumber yard, on Whitebird creek, as directed by second party. also to furnish all labor, supplys, and repairs, and comply strictly with all State, and Federal laws, rules, and regulations.
'Second party agrees to pay first party on the 5th and 20th of each month, for all lumber delivered and piled, up to the first, and 15th of each month, also to furnish mill, and power.
'Signed and sealed this 20th day of October, 1947
A. R. Cooper
* * *
* * *
* * *
* * *
L. R. Smith.'
Respondent worked under this latter contract until the time the property was seized by the Sheriff in the claim and delivery action.
The appellant relied on this latter contract to support his contention that he owned all the equipment, while respondent relied upon the earlier contract as one of security and not of purchase to support his contention that he was the owner and entitled to the possession of the property and further contended that the contract of 1947 was one for work and services, and that the underscored words were added to the contract after it had been executed and that he never received a copy of the contract and had no knowledge of the alteration until the contract was offered in evidence.
Further conflicting evidence was admitted with respect to the Idaho operations relating particularly to the mutual and reciprocal charges and credits.
The primary question in issue in an action of claim and delivery is right to the possession of the property in controversy. Commercial Credit Co. v. Mizer, 50 Idaho 388, 296 P. 580; American Fruit Growers v. Walmstad, 44 Idaho 786, 260 P. 168; ...
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