Taylor v. Herbold, 10541

• Decision Date: 08 April 1971
• Docket Number: No. 10541,10541
• Citation: 94 Idaho 133,483 P.2d 664
• Parties: Joe TAYLOR, Plaintiff-Respondent and Cross-Appellant, v. Max HERBOLD, Individually and Max Herbold, Inc., Defendants-Appellants and Cross-Respondents.
• Court: Idaho Supreme Court

Page 664

483 P.2d 664

94 Idaho 133

Joe TAYLOR, Plaintiff-Respondent and Cross-Appellant, v. Max HERBOLD, Individually and Max Herbold, Inc., Defendants-Appellants and Cross-Respondents.

No. 10541.

Supreme Court of Idaho.

April 8, 1971.

Goodman & Duff and Creason & Creason, Rupert, for appellants.

James Annest, Burley, for appellee.

SHEPARD, Justice.

This is an action by plaintiff in two counts, one for breach of a contract to purchase potatoes and, secondly, for tortious damages arising from said breach of contract. Following trial to a jury, a verdict was returned for the plaintiff on each count. Thereafter, the trial court granted defendants' motion for a judgment notwithstanding the verdict on the second count. Defendants have appealed and plaintiff has cross-appealed. We affirm the action of the trial court.

Plaintiff-respondent and cross-appellant (hereinafter plaintiff) was at the time of the transactions herein a potato farmer in the Paul, Idaho area. Defendnats-appellants and cross-respondents (hereinafter defendants) were in the produce business. For approximately three years prior to 1966, plaintiff had sold potatoes to defendants with no problems arising between the parties.

Plaintiff had a large potato cellar containing potatoes grown on two different lots of land. These potatoes were separated into two lots by a divider board, but within each lot the potatoes were not segregated but merely piled on the floor of the cellar. One lot of potatoes was denominated the Cassia lot and the other called the Senter lot. At the time of the contract in question approximately 4,000 cwt. sacks of the Senter lot had been sold and there remained approximately 10,300 cwt. sacks in that lot.

Plaintiff and defendants entered into negotiations and defendants ordered approximately 7,000 cwt. sacks at $1.65 per cwt. field run with 'dirt rot and green out' by dry dock inspection. The contract dated February 10, 1966, was in the nature of an order blank and signed by the parties. No terms of delivery were included nor was there identified the lot from which the potatoes were to be selected. The evidence is conflicting as to whether any delivery date was discussed or, if so, what the date was to be. Plaintiff contended that the agreed delivery period would be within seven to ten days and the defendants conceded that the delivery date was to be 30 to 60 days from the date of the contract.

Thereafter, plaintiff talked to defendant several times by telephone and in person to ascertain why possession of the potatoes had not been taken by defendants. Each time defendant assured plaintiff that upon the conclusion of current business he would pick up the potatoes. About April 1, 1966, plaintiff and defendant had a heated telephone conversation and thereafter plaintiff called almost weekly. Beginning in March, 1966, plaintiff had placed thermostatically controlled fans in the cellar to circulate cool air, but about May 10, 1966, when the cellar was necessarily opened, the potatoes began to deteriorate rapidly. Plaintiff was able to sell a portion of the potatoes under contract for about 58 cents per cwt. The remainder of the potatoes under contract, as well as the remainder of the Senter lot, remained unsold. It is undisputed that defendants never took delivery of any potatoes covered by the contract.

Plaintiff instituted this action for the value of the 7,000 cwt. potatoes covered by the contract and for the value of the 3,300 cwt. potatoes remaining unsold in the Senter lot and not covered by the contract. At the conclusion of plaintiff's case, defendants moved for a directed verdict on each count, which motions were denied. The jury returned a verdict for plaintiff on each count and thereafter the trial court granted defendants' motion for judgment notwithstanding the verdict on the second count.

Defendants contend that the verdict on the first count was not supported by the evidence. Where the findings of the trial court are supported by competent substantial, although conflicting, evidence, those findings are binding and conclusive on appeal. Olsen v. Hawkins, 90 Idaho 28, 408 P.2d 462 (1965); Clayton v. Jones, 91 Idaho 87, 416 P.2d 34 (1966). It is obvious that the jury believed the evidence submitted by plaintiff and such evidence was competent and substantial. The factual questions before the jury were: Had there been a rescission of the contract?; Was there a good faith belief by the plaintiff that defendants would eventually take the potatoes?; What damages were suffered by the plaintiff because of the breach of the contract?; and what delivery date was contemplated by the parties? There was ample evidence presented by the plaintiff to enable the jury to find for him on each question of fact. Defendants also contend that the trial court abused its discretion in refusing to submit interrogatories to the jury. The submission of special interrogatories is entirely within the discretion of the trial court. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924); Peterson v. Hailey National Bank, 51 Idaho 427, 6 P.2d 145 (1931). It is clear that it is not an abuse of discretion to refuse to submit special interrogatories in a cause where the factual issues are not complicated and particularly when all points sought to be covered by the special interrogatories have been properly submitted by jury instructions. Yearsley v. City of Pocatello, 69 Idaho 500, 210 P.2d 795 (1949); C. C. Anderson Stores Co. v. Boise Water Corp., 84 Idaho 355, 372 P.2d 752 (1962).

Defendants also contend that certain testimony amounted to the showing of an offer of compromise or settlement and that the trial court should have submitted instructions to the jury that such offer could not be considered. We note that defendants did not properly object to such testimony nor did they submit any requested instructions on that point. In such case the failure to so instruct is not error. Joyce Brothers v. Stanfield, 33 Idaho 68, 189 P. 1104 (1920); Owen v. Taylor, 62 Idaho 408, 114 P.2d 258 (1941).

Defendants contend that certain of the jury instructions were erroneous. We find no merit to those specifications suggesting erroneous instructions. The instructions state the law clearly and adequately and the legal theories stated therein are supported by the facts produced at trial. Defendants also contend that the trial court failed to submit its jury instructions to counsel and that such failure constitutes reversible error. While better trial practice may well be to provide the instructions to the parties, it is our opinion that such was not reversible or prejudicial error in the case at bar. The records in this case were evidently meticulously kept by both the reporter and the clerk. The record indicates that at the close of the testimony and in the absence of the jury, a colloquy took place between the trial judge and trial counsel. At the time the trial judge indicated that he intended to recess until the following morning at which time counsel would be permitted to present their argument to the jury and that the jury would be instructed by the court thereafter. No request was made by counsel for copies of the instructions the court intended to deliver. No objection was voiced by counsel at that time for failure to receive the court's instructions. The record further indicates that the following morning, upon reconvening of the court, trial counsel presented their arguments to the jury. After a brief recess, court was reconvened and the court's instructions were read to the jury. At no time does the record indicate that counsel for defendants requested copies of the jury instructions nor was any objection voiced to the court instructing the jury in the absence of counsel having a copy of the court's instructions. We further note that the court's instructions were approximately 19 in number. Defendants' counsel had submitted 19 requested instructions. The record discloses that while some of them were rejected and not given by the trial court, the great majority were either given or covered by the court's instructions. No prejudice has been shown by the failure of the trial court to deliver its instructions. If the failure of the trial court to comply with I.R.C.P. 51 was error, such cannot be considered prejudicial error in the absence of counsel granting the trial court an opportunity to correct such error by timely notice and/or objection.

Defendants further complain that the jury was not furnished weitten instructions to carry into the jury room. The record discloses that although the instructions were not requested by the jury, they were nonetheless delivered by the bailiff prior to the time that the foreman announced a verdict had been reached. The record does not disclose the precise time that the jury received the instructions and error will not be presumed. We further note that the record is again silent concerning any notice or objection by defendants' counsel to the procedure used by the trial court. Again, we point out that counsel will not be heard to suggest error for the first time on appeal without having granted the trial court the opportunity to correct its error, if indeed error it was.

Defendants lastly contend that the trial court erred in failing to grant defendants' motion for a non-suit on plaintiff's second count at the conclusion of plaintiff's case. Defendants suggest that the failure to grant a non-suit on plaintiff's second count resulted in his (the defendant becoming a 'target defendant' because of sympathy of the jurors for the plaintiff. No prejudice...