Tilden v. Hubbard

Citation138 P. 1133,25 Idaho 677
PartiesEUGENE M. TILDEN, Respondent, v. DANIEL R. HUBBARD, Appellant
Decision Date10 June 1913
CourtUnited States State Supreme Court of Idaho

CONTRACT - RULE OF CONSTRUCTION - EVIDENCE - SUFFICIENCY - CONFLICTING EVIDENCE-OPINION EVIDENCE-DAMAGES-RULE OF ASSESSMENT-WATER-LIFT-PROVISIONS OF CONTRACT-INSTRUCTION.

1. In the construction of a contract the court should endeavor to arrive at the intention of the parties, and if there is room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered and the contract construed in the light of such facts and circumstances, so that the intention of the parties to the contract may be ascertained if possible and given effect.

2. Where a contract is entered into for planting an orchard and for the cultivation and irrigation of the same, which contains the following provision, "to clear land from sage brush, level, cultivate, construct laterals and water-lifts necessary for irrigating said land, irrigate and in all ways care for the same in a good and workmanlike manner, and to replace any trees that may be accidentally destroyed or that shall fail to grow from any reason or from any cause, for the period of four full growing seasons from date hereof," such contract is clear and explicit, and the language in no way obligates the promisor, the appellant in this case, to build a fence around the land sufficient to keep rabbits from trespassing upon said land, and shows no intention of the parties to include said obligation in the contract, and an instruction given by the trial court in accordance with the terms of the contract is not error.

3. Held, that the evidence is conflicting upon a number of issues of fact, but under the rule established in this state this court will not reverse a judgment in a case where there is substantial evidence to support the verdict.

4. Held, that there is substantial evidence to support the verdict.

5. The rule of law, as we understand it, is that the fact that one party has a greater number of expert witnesses than the other party is not the controlling test for determining the preponderance of the evidence.

6. Where an instruction under the issues and the evidence is as follows, "still the defendant was bound to use reasonable care to care for these trees, and this care would include the adoption of ordinary and reasonable methods for the protection of the trees against rabbits, short of building a fence or the erection of any other permanent improvement on the property," the instruction states the law governing the terms of the contract between the parties.

7. The following language used in the contract, "in all ways care for the same in a good and workmanlike manner," means, such means as is ordinarily and reasonably required to protect the trees against the injury from rabbits.

8. Where the evidence shows that tar paper wrapped upon the trees was applied to the trees as a protection against rabbits, and such method is the only method known for the protection of trees against rabbits other than fencing, which is not required under the contract, and the jury finds such protection was provided in a good and workmanlike manner, and was the only method other than fencing that was generally resorted to under the facts of the case, and the verdict of the jury may include damages assessed resulting from injuries done by rabbits, this court will not reduce the amount of damages or reverse the case, because such verdict may include damages for injuries done by rabbits.

9. Where the complaint alleges damages on account of lack of cultivation, improper irrigation and destruction by rabbits and evidence was offered for and against each of said allegations, and the jury finds a general verdict for the plaintiff assessing the aggregate damages in the sum of $4,000, and no instructions are given or questions submitted to the jury requiring the jury to find the damages specifically upon each of the alleged causes of injury, the verdict of the jury will not be set aside because the verdict is not sustained by sufficient evidence on each of the alleged injuries.

10. Where H. agrees to construct canals and a water-lift and the necessary machinery for the purpose of operating such water-lift to be used in carrying the water to the lands to be irrigated, the court did not commit an error by instructing the jury that the defendant was required by the contract to furnish a water-lift only if it was necessary for the irrigation of the land or some part thereof, and that it would have to be a water-lift that would work, and if power or an engine was necessary for the purpose of operating the water-lift, that it was the duty of the defendant to furnish such power and engine, and that the appellant had no right to remove the same, as it had become a part of the works of irrigation under the contract.

11. In a trial by jury, where the trial court instructs the jury that the instructions, taken as a whole, state the law of the case, and that all the instructions given should be considered by the jury, and it appears upon appeal that such instructions when taken as a whole state the law applicable to the facts and do not mislead the jury, the verdict of the jury will not be disturbed on appeal, upon the ground that a requested instruction was not given.

12. Where the complaint alleges damages for injury sustained by several causes in the sum of $15,200, and evidence is introduced for and against the total alleged damages, and the jury return a verdict for the sum of $4,000, and there is substantial evidence to sustain said amount, the verdict will not be set aside because it is excessive, or for the reason that it cannot be determined just what items of damage were included in the total amount found by the jury by their verdict.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

An action to recover damages for default of written contract. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Cavanah Blake & MacLane and Geo. H. Rust, for Appellant.

When after an enumeration of particulars, there is a sweeping clause, comprising all other things under a general description, the scope of such clause is restricted in such things within the description of the same kind with the particulars enumerated. (Rooke v. Lord Kensington, 14 Eng. Rul. Cas. 717, 2 K. & J. 753, 25 L. J. Ch. 795, 2 Jur., N. S., 755, 69 Eng. Reprint, 986; Grumley v. Webb, 44 Mo. 444, 100 Am. Dec. 304; St. Louis v. Laughlin, 49 Mo. 559.)

General words may be limited by what precedes or follows, under the rule of ejusdem generis. (Billings v. Morrow, 7 Cal. 171, 68 Am. Dec. 235; Dickson v. Cole, 34 Wis. 621; Kearney v. Clutton, 101 Mich. 106, 45 Am. St. 394, 59 N.W. 419; Bock v. Perkins, 139 U.S. 628, 35 L.Ed. 314, 11 S.Ct. 677; Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am. Dec. 179; Given v. Hilton, 95 U.S. 591, 24 L.Ed. 458; Smyth v. Lynch, 7 Colo. App. 383, 43 P. 670; Quay v. Presidio & F. R. Co., 82 Cal. 1, 22 P. 925.)

The true construction of the contract is to be found, not alone in any particular provision it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account. (Herryford v. Davis, 102 U.S. 235, 26 L.Ed. 160; Stockton Sav. etc. Soc. v. Purvis, 112 Cal. 236, 53 Am. St. 210, 44 P. 561; Rockefeller v. Merritt, 76 F. 909, 22 C. C. A. 608, 35 L. R. A. 633; Speed v. St. Louis M. B. T. R. Co., 86 F. 235, 30 C. C. A. 1; Benton v. Benton, 63 N.H. 289, 56 Am. Rep. 512.)

Wood & Driscoll, for Respondent.

In the construction of a contract the court should endeavor to arrive at the real intention of the parties, and if there is room for doubt as to its true meaning, the facts and circumstances out of which such contract arose should be considered and the contract construed in the light of such facts and circumstances, so that the intention of the parties to the contract may be ascertained, if possible, and given effect. (Schurger v. Moorman, 20 Idaho 97, Ann. Cas. 1912D, 1114, 117 P. 122; Burke Land etc. Co. v. Wells-Fargo & Co., 7 Idaho 42, 60 P. 87; 9 Cyc. 578; 17 Am. & Eng. Ency. of Law, 17, 21; 2 Page on Contracts, sec. 1126.)

Questions of fact only are raised by appellant, and that in the face of the statutory rule stated by this court in the case of Just v. Idaho Canal etc. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381.

Instructions must be considered all together, to the end that they may be properly understood, and if when so construed, and as a whole, they fully and fairly state the law applicable to the evidence, there is no error in giving them, although detached sentences or separate charges considered alone might be erroneous or misleading. (Blashford, Instructions to Juries, 385; Barrow v. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Whitney v. Cleveland, 13 Idaho 558, 91 P. 176; Just v. Idaho Canal etc. Co., supra; Anderson v. Great Northern Co., 15 Idaho 513, 99 P. 91; Hayne on New Trial and Appeal, sec. 131.)

Cavanah, Blake & MacLane and Geo. H. Rust, for Appellant on Rehearing.

The rule that a judgment will not be reversed where there is a conflict in the evidence does not apply where the evidence is conflicting upon a question which does not govern the right of recovery. (Breshears v. Callender, 23 Idaho 348, 131 P. 15.)

Opinion evidence falls to the ground as utterly worthless when inconsistent with clearly proved facts, or with reason and common sense as applied to other credible evidence. Mere theoretical contentions are not to be accepted against positive testimony of...

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