Stockmen's Supply Co. v. Jenne

Decision Date13 November 1951
Docket NumberNo. 7767,7767
Citation72 Idaho 57,237 P.2d 613
PartiesSTOCKMEN'S SUPPLY CO., Inc. et al. v. JENNE et al.
CourtIdaho Supreme Court

O. R. Baum and Ruby Y. Brown, Pocatello, for appellants.

R. J. Dygert, Soda Springs, and P. M. Condie, Preston, for respondents.

GIVENS, Chief Justice.

December 28, 1935, Caribou County by written contract, sold to George Carpenter certain described real estate for $1,200, $240 down and $240 on December 28, 1936, 1937, 1938, and 1939, respectively. A total of $641 was paid on this contract by about September, 1939.

December 28, 1938, Carpenter then being indebted to respondent Company, gave them a note for $568.69 due October 29, 1939.

January 29, 1940 Myrtle Jenne, then Carpenter's wife, secured a divorce from him and was awarded his interest in the real property in question. The same day she signed and gave to respondent Company her note for $568.69. This typewritten notation was thereon when admitted in evidence: 'Renewal of certain note with interest added' and this notation in red pencil (when and by whom made not clearly disclosed): 'Applied to purchase of Carpenter Real Estate.'

About July 8, 1940 Mrs. Jenne assigned her interest in the contract, between Caribou County and her former husband, to respondent Company and July 15, same year, Caribou County by warranty deed conveyed the real estate involved to it. On the 8th day of July, same year, the Company agreed in writing to sell the property to Mrs. Jenne for $1,301.20, which was the amount of the note previously signed by her and interest thereon, and the amount paid by the Company to the County, i. e., the balance of the original purchase price from the County of $1,200 plus interest, less what had theretofore been paid the County by Carpenter. Said $1,301.20 was payable $240 December 28, 1940, with like amount annually through 1944, and $101.20 in 1945, with interest at six percent per annum. This is the concluding paragraph of the contract: 'Time is the essence of this contract and each payment together with all interest shall be paid as herein stipulated and upon failure of the second party to make such payments the first party may, at its option, declare this contract forfeitedand all payments made shall be retained as rental and liquidated damages, and should the Stockmen's Supply Company, a corporation, serve notice of their intention to exercise their option to declare the contract terminated, they may do so by giving notice to the party of the second part for 10 days and any default may be paid within the 10 days but not afterward.' Dfts. Ex. 4. (Emphasis ours.)

Mrs. Jenne occupied the premises for a time in 1940 and then left and took up her residence at another place in Soda Springs.

Beginning with 1941, respondent Company had charge of and has since rented the premises for the total revenue, at the end of 1949, of $1,984.58. In the interim, respondent Company paid $309 in taxes and improvements, leaving a net income of $1,675.58.

Respondent Company ineffectively undertook to sell the property to one Miner in about 1945 for $3,000, and did sell to the Schvaneveldts February 13, 1950, for $6,000.

Evidently the validity of respondent Company's title was questioned and it brought suit to quiet title against appellant Mrs. Jenne and her present husband and others who claimed any interest in the property. Respondent Company claims title subject, of course, to the contract with the Schvaneveldts.

Appellants, Mrs. Jenne and her present husband, Calvin A. Jenne, party pro forma, in the amended cross-complaint alleged willingness, ability, and offer to pay as required by the contract, the balance due thereon; respondent Company's refusal to accept such payment; that because the recited purchase price therein was made up of the prior indebtedness of her first husband, and the balance due the County, the contract was in truth and in fact and should be construed, a mortgage; that subsequent to the written contract, appellant Jenne assigned the rents to respondent Company and the Company agreed to collect and apply the rent on the taxes and installments due on the contract, and that such rents exceed the balance due; that in the event they were not sufficient to pay the indebtedness, appellants tendered such balance. Appellants also asked for damages, now of no moment.

Respondent Company's answer to such cross-complaint denied appellants' willingness, readiness, or ability to comply with the written contract or that respondent Company refused to accept moneys under the contracts; that appellant Jenne never paid or offered to pay and that she had abandoned the contract in 1941, and turned over the property to respondent Company; that since that time respondent Company has been in possession of the property and held it adversely to appellants and that their rights are barred by the provisions of Chapter 2, Title 5, Idaho Code. Respondent Company further denied the claimed supplemental agreement by which it was to collect and apply the rents; and denied the contract of sale was in truth and in fact a mortgage, and that rents received exceeded the amount due under the written contract; and alleged that since 1941 appellant Jenne made no claim to the premises, rents or profits thereof; but admits that appellant Jenne was in possession of the premises for about a year after the written contract was executed and paid some taxes and during that one year, appellant harvested and kept the proceeds of the crop; and asked that appellants take nothing by reason of the cross-complaint and for general relief.

At the conclusion of respondent Company's case in chief, as the result of an extended colloquy between Court and counsel, the names of the Schvaneveldts were endorsed in the proceedings as parties plaintiff with respondent Company, and all of appellants' denials and affirmative allegations were deemed applicable to controvert Schvaneveldts' interests as against appellants'. The Court found: that Mrs. Jenne voluntarily surrendered the property to respondent Company; that the plaintiffs have been in possession of the property and the owners thereof for more than seven years last past and have held possession of the property adversely to appellant Jenne, except as to the right of the Farmers Land and Irrigation Company of Alexander, which evidently has a conceded right-of-way across the land; and '* * * that any interest the said defendant Myrtle Jenne may have had in or to said premises whether by reason of a contract or otherwise is now barred by the provisions of Chapter 2, Title 5 of the Idaho Code.' And concluded respondents were entitled to have respondent Company's title quieted against appellant Jenne's, subject to the contract with the Schvaneveldts and the Farmers Land and Irrigation Company's right-of-way.

Aside from non-payment, the only evidence bearing on abandonment was the testimony of Ruud, manager of respondent Company, as follows:

'A. She said I am moving off of the place and I thought I had better come in and tell you so that you can put somebody down there and watch the property. I said o. k., Mrs. Jenne. To my knowledge that is all that was said.

'Q. Then did she leave there? A. Yes, sir, shortly afterwards.

'Q. Then what did you do? A. We left the place idle for some months before we found a renter to put down there.

'Q. Then any rent you collected would show by your books? A. Yes, sir.

'Q. Then at that time when Mrs. Jenne told you that then you * * *

'Q. When did the Stockmen's Supply Company first take possession of those premises? A. I would say three months after that conversation.

'Q. Then at that time * * * A. The exact date I don't recall.

'Q. Then at that time you put a renter in the house? A. Yes, sir.

'Q. At any time since that time has the defendant, Mrs. Jenne, either been in possession of those premises, or said anything to you about going into possession of those premises? A. On one occasion.

'Q. When was that? A. Possibly, to the best of my knowledge a couple of years after that. She came to my office--shall I state?

'Q. What was said and done? A. And made the statement to me how much would it cost me to own that place down there. I said Mrs. Jenne, it is out of my hands, the Board of Directors have taken it out of my hands and I don't think the place is for sale to my knowledge; that is all that was ever said.'

The written contract did not specify who was to have possession pending payment. Extended cross-examination elicited no further evidence showing abandonment of the written contract, or anything else,

The purported statement from Mrs. Jenne to witness Ruud: 'A. She stated to me the fact she would like to buy that place back and how much would it cost me. I said, Mrs. Carpenter, it has been taken out of my hands and I don't believe the place is for sale,' did not show abandonment, but evinced desire or inquiry as to further payments and Ruud sent Miner, the then prospective customer relative thereto, to Mrs. Jenne in 1945.

Mrs. Jenne denied abandonment of the written contract and in the legal sense, of possession; and, giving Ruud, the only material witness for respondent Company, the benefit of all he said--though his testimony was replete with evasion, forgetfulness and contradictions, and statements often completely refuted by the Company's own records--still there is no evidence sufficiently showing abandonment of the written contract to counteract the requirement of notice to forfeit the written contract. Mr. Gorton, the other witness for respondent Company and its secretary, gave no testimony bearing on abandonment of the written contract, except possibly non-payment.

The written contract did not require or give Mrs. Jenne possession of the land pending payment as a prerequisite to buy the land, by making the installment payments. Hence, possession by respondents, though with appellants' consent or surrender of possession did not of itself...

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