Smith v. Neeley

• Decision Date: 03 December 1924
• Citation: 231 P. 105,39 Idaho 812
• Parties: T. W. SMITH, Appellant, v. E. A. NEELEY and P. E. NEELEY, Respondents
• Court: Idaho Supreme Court

231 P. 105

39 Idaho 812

T. W. SMITH, Appellant, v. E. A. NEELEY and P. E. NEELEY, Respondents

Supreme Court of Idaho

December 3, 1924

MOTION FOR NEW TRIAL-PLEADING-COUNTERCLAIM-PLEADING DAMAGE FROM FRAUD-OBJECTION TO EVIDENCE ON GROUND NO CAUSE OF ACTION PLEADED.

1. A paper styled "Notice of intention to move for a new trial," when sufficient in form as a notice of motion for a new trial, will be considered as such, as to any matters sufficiently presented thereby.

2. When a general objection is made to the introduction of evidence upon the ground that the facts pleaded do not constitute a cause of action nor a defense, the court will consider as properly alleged all facts that may reasonably be implied from the allegations made, and it is only when the pleading utterly fails to state, either directly or by reasonable inference, some fact essential to the cause of action or defense pleaded, that such objection should be sustained.

3. In order to show damage from fraud, the purchaser of property must plead that the property he obtained was of less value than the price paid for it.

4. Held, that the affirmative defense of fraud in this case, and the counterclaim based upon the same facts, fail to show either directly or by any possible inference facts constituting either a defense or a counterclaim, and the objection to the introduction of evidence offered on that issue should have been sustained.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. H. F. Ensign, Judge.

Action upon promissory note. Judgment for defendants. Order denying motion for new trial reversed.

Order reversed and a new trial granted.

Taylor & Denman, for Appellant.

Where timely objection has been made it is error to admit evidence in support of an answer or counterclaim that does not state facts sufficient to constitute a defense or counterclaim. (C S., secs. 6693, 6701; Swanholm v. Reeser, 3 Idaho 476, 31 P. 804; Montana Electric Co. v. Thompson, 36 Idaho 127, 209 P. 722; Western Loan Bldg. Co. v. Gem State Lumber Co., 32 Idaho 497, 185 P. 554; Dietsch v. Wiggins, 1 Colo. 299, 82 U.S. 539, 21 L.Ed. 228; McConnell v. Davis, 46 Okla. 201, 148 P. 687; Hilton v. Bailey, 46 Okla. 759, 149 P. 863; Ferat v. Anderson, 53 Mont. 172, 163 P. 112; United Casting Co. v. Duncan, 44 Cal.App. 384, 186 P. 403; Wotter v. Dixon, 29 Idaho 26, 157 P. 250.)

An allegation of damage is essential to a defense or counterclaim based on the ground of fraud. (Frank v Davis, 34 Idaho 678, 203 P. 287; Breshears v Callender, 23 Idaho 348, 131 P. 15; Kemmerer v. Pollard, 15 Idaho 34, 96 P. 206; Brown v. Bledsoe, 1 Idaho 746; Watson v. Molden, 10 Idaho 570, 79 P. 503; 26 C. J. 1062-1065, 1167, 1182; Gridley v. Ross, 37 Idaho 693, 217 P. 989.)

An allegation that the property sold is worth less, by a certain sum, than it was represented to be worth is not an allegation of damage. (Curtis v. Buzard, 254 Pa. 61, 98 A. 777; Parks v. Smith, 95 Ore. 300, 186 P. 552; Salisbury v. Godard, 79 Ore. 593, 156 P. 261; Pitts v. Kennedy (Tex. App.), 177 S.W. 1016; Thompson v. Newell, 118 Mo.App. 405, 94 S.W. 557; Alden v. Wright, 47 Minn. 225, 49 N.W. 767; Gordon v. Rhodes (Tex. App.), 117 S.W. 1023; Maxon-Nowlin Co. v. Norswing, 166 Cal. 509, 137 P. 240.)

The "Notice of intention to move for new trial," was intended as a "Notice of motion for new trial." It was also treated as such by the respondents in all the subsequent proceedings leading up to the final disposition of the motion, and no objection was made to its form in the court below.

The court will look to the substance and purpose of the notice in passing upon its sufficiency. (Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923; Times Printing etc. Co. v. Babcock, 31 Idaho 770, 176 P. 776.)

James & Ryan, for Respondents.

There is no provision in the Idaho statutes for filing a "Notice of intention to move for new trial" but the proper document to be filed is a "Notice of motion for new trial." (C. S., sec. 6890; Kelley v. Clark, 21 Idaho 231, 121 P. 95.)

Issues not raised by the pleadings, questions not raised in the trial court and errors not raised on the motion for new trial and urged in the lower court will not be considered on appeal. (Watson v. Molden, 10 Idaho 570, 79 P. 503; Miller v. Donovan, 11 Idaho 545, 83 P. 608.)

Rulings of the trial court relating to the pleadings cannot be made the ground of a motion for new trial. (20 R. C. L., sec. 45, p. 262; 131 Am. St. 190, at 193; 74 Am. Dec. 233; 6 Ann. Cas. 607.)

The refusal to grant a motion for new trial is addressed to the discretion of the trial court and in the exercise of this discretion it will not be disturbed except in the case of manifest abuse. (McAllister v. Bardsley, 37 Idaho 220, 215 P. 852.)

An objection that the complaint does not state facts sufficient to constitute a cause of action cannot be reviewed upon an appeal from an order denying a new trial where there is no appeal from the judgment. (Naylor v. Lewiston etc. Ry. Co., 14 Idaho 789, 96 P. 573; Bode v. Lee, 102 Cal. 583, 36 P. 936; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Wright v. Stewart, 32 Idaho 490, 185 P. 69.)

Partners stand in a fiduciary relation to each other. Where one partner sells his interest to his copartner who relies on the integrity and superior knowledge of the other to calculate the value of the property, he may recover to the extent of errors committed in arriving at the amount of the consideration, whether the errors are the result of fraud or mistake. (Crockett v. Burleson, 60 W.Va. 252, 54 S.C. 341, 6 L. R. A., N. S., 263; Ehrmann v. Stitzed, 121 Ky. 751. 123 Am. St. 224, 90 S.W. 275; Nelson v. Matsch, 38 Utah 122, Ann. Cas. 1912D, p. 1242, 110 P. 685; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133.)

BRINCK, Commissioner. McCarthy, C. J., and Dunn and Wm. E. Lee, JJ., concur.

OPINION

BRINCK, Commissioner.

Plaintiff, appellant here, brought suit upon a promissory note for $ 1,616.72, executed by defendants. As defenses the defendants alleged a material alteration in the note, and that the note was procured by fraud on the part of plaintiff; they also alleged the same fraud as the basis of a counterclaim in the sum of $ 2,135.16. The jury in answer to a special interrogatory found there had been no material alteration in the note, but rendered a general verdict for the defendants in the sum of $ 808.36, and judgment was entered thereon. Plaintiff, moved for a new trial, which motion was denied, and the only appeal is from the order denying the new trial.

As to whether appellant properly raised at the trial the questions on which he relies here, and whether he has sufficiently presented by his notice of motion for new trial, any of the questions urged, various contentions are made by the respondents upon the record. Plaintiff's original notice of his motion for a new trial is styled "Notice of intention to move for a new trial"; but it being sufficient in form as a notice of motion for a new trial, it will be considered as such, as to any matters sufficiently presented thereby. (Times Printing Co. v. Babcock, 31 Idaho 770, 176 P. 776.)

After the time elapsed for filing specifications of particulars in which the evidence was claimed by plaintiff to be insufficient to justify the verdict, a new notice of motion for a new trial was filed, containing such specifications; and the trial court, upon plaintiff's application, under C. S., sec. 6726, for relief from his default in not filing the specifications, entered an order purporting to grant the relief asked, and considered the specifications upon the hearing of the motion for new trial. Whether C. S., sec. 6726, authorizes relief in such a case need not be decided here, since one question raised by the original notice of motion for new trial requires a reversal of the order appealed from.

One of the errors of law occurring at the trial, alleged in the first notice of motion for a new trial, consists of the overruling by the court of plaintiff's objection to any evidence offered in support of the defense and counterclaim, so far as based on fraud, upon the ground that the answer in that respect fails to state facts sufficient to constitute a defense or state a counterclaim. To attack pleadings by a general objection to the introduction of evidence upon the ground that the facts pleaded do not constitute a cause of action nor a defense is not a commendable practice, and is not favored by the courts, and upon such objection the court will consider as properly alleged all facts that may reasonably be implied from the allegations made. Every intendment will be taken in favor of the sufficiency of the pleading, and it is only when the pleading utterly fails to state, either directly or by reasonable inference, some fact essential to the cause of action or defense pleaded, that such objection should be sustained. (Coliseum Athletic Assn. v. Dillon, 204 Mo.App. 504, 223 S.W. 955; Hines v. Pershin, 89 Okla. 297, 215 P. 599.) But if by even such liberal construction the pleading itself fail to state facts sufficient to constitute a cause of action or defense, then the objection should be sustained. (31 Cyc. 759; Carpenter v. Sibley, 153 Cal. 215, 126 Am. St. 77, 15 Ann. Cas. 484, 94 P. 879, 15 L. R. A., N. S., 1143; McConnell v. Davis, 46 Okla. 201, 148 P. 687; Haupt v. Independent Tel. Messenger Co., 25 Mont. 122, 63 P. 1033.)

Appellant's contention is that the fraud pleaded as a...