Tsuboi v. Cohn

• Decision Date: 28 November 1924
• Citation: 40 Idaho 102,231 P. 708
• Parties: J. TSUBOI, Respondent, v. MYERS COHN and SARAH COHN, Appellants
• Court: Idaho Supreme Court

231 P. 708

40 Idaho 102

J. TSUBOI, Respondent, v. MYERS COHN and SARAH COHN, Appellants

Supreme Court of Idaho

November 28, 1924

PARTITION FENCE-FAILURE TO MAINTAIN-FENCE AGREEMENT-STATUTE OF FRAUDS - TRESPASS - IMPLIED CONTRACT - PLEADING - JOINDER-DEMURRER-APPEAL AND ERROR-CERTIFICATE REQUIRED BY RULE 24-INSTRUCTIONS.

1. An appeal from an order overruling a motion for a new trial cannot be reviewed by this court where the transcript does not contain a certificate in substantial conformity with Rule 24 of this court showing what papers were submitted to the trial judge and by him used on the hearing of the motion for new trial.

2. Both counts of complaint examined and found to state a cause of action.

3. An oral agreement to build and maintain a partition fence is not a contract for the leasing or sale of land or an interest therein within the meaning of C. S., sec. 7976, subds. 1 and 5, and is valid and binding on the parties thereto and upon their privies when recognized and acted upon.

4. Where defendants knew where the premises of plaintiff were and they knowingly, deliberately and intentionally caused their cattle to enter thereon with the intention that such cattle should obtain the benefit of the feed and pasturage thereon, at the expense of plaintiff, an implied agreement was created whereby defendants were required to pay to plaintiff the reasonable value of such feed and pasturage.

5. An action based upon a breach of an oral agreement to erect and maintain a partition fence and an action upon an implied contract for the value of sugar-beets and sugar-beet tops consumed and destroyed by cattle belonging to defendant may be set forth in separate counts in one complaint where each arose out of the same transaction and affected all of the parties to the action and did not require different places of trial and each count alleged the same amount of damages.

6. A cause of action may be stated in different counts in order to meet any possible phase of the evidence, and the pleader will not be required to elect on which count he will proceed.

7. The granting or refusing of a request for special findings is entrusted to the sound discretion of the trial court and only upon a clear abuse of such discretion will its ruling be disturbed.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action to recover damages for consumption and destruction of beets and beet-tops by cattle. Judgment for plaintiff. Reversed as to defendant Sarah Cohn. Affirmed as to defendant Myers Cohn.

Judgment as to Myers Cohn affirmed and judgment as to Sarah Cohn reversed. Costs awarded to respondent.

B. W Davis, for Appellants.

The first count of plaintiff's complaint does not state a cause of action and is also subject to defendants' special demurrer. (Osborne v. Kimball, 41 Kan. 187 21 P. 163; C. S., secs. 1959, 7976; Union Savings & Trust Co. v. Krumm, 88 Wash. 20, 152 P. 681; Knight v Southern Pacific Co., 52 Utah 42, 172 P. 689.)

The second count of plaintiff's complaint does not state a cause of action and is subject to defendants' special demurrer. (Fry v. Hubner, 35 Ore. 184, 57 P. 420; Walker v. Bloomingcamp, 34 Ore. 391, 43 P. 175, 56 P. 809; Swanson v. Groat, 12 Idaho 148, 85 P. 384; Harrison v. Adamson, 76 Iowa 337, 41 N.W. 34.)

A complaint must allege ultimate facts and not merely conclusions of law; an allegation that a defendant deliberately, knowingly and intentionally permitted, allowed and caused cattle to cross upon the lands of the plaintiff states conclusions of law. (Hurt v. Brandt, 37 Idaho 186, 215 P. 842.)

The motion to elect between the causes of action should have been sustained, said causes of action being inconsistent. ( Lewis v. Utah Construction Co., 10 Idaho 214, 77 P. 336; Mullaly v. Austin, 97 Mass. 30; Harvey v. Southern P. Co., 46 Ore. 505, 80 P. 1061.)

Where two causes of action are stated and there is any inconsistency between the same, the verdict should specify upon which cause it is based. (Lutyen v. Ritchie, 37 Idaho 473, 218 P. 430; St. Louis & S. F. Ry. Co. v. Farmers' Union Gin Co., 34 Okla. 270, 125 P. 894; Chase v. Knabel, 46 Wash. 484, 90 P. 642, 12 L. R. A., N. S., 1155; Wrought Iron Range Co. v. Zeitz, 64 Colo. 87, 170 P. 181.)

The plaintiff having stated his case in separate counts, each count purporting to state separate and distinct causes of action, the verdict on each count must be sustained by the evidence. (King v. C. C. Bendell Commission Co., 7 Colo. App. 507, 44 P. 377; Meyer v. Shamp, 51 Neb. 424, 71 N.W. 57; King v. Beaumier, 26 Wyo. 35, 174 P. 612.)

A plaintiff cannot waive tort and sue in contract for trespass, where no deliberate and wilful trespass is shown. ( Tightmeyer v. Mongold, 20 Kan. 90.)

Peterson & Coffin, for Respondent.

A tort-feasor is not allowed to set up his own wrongful intent in disavowal of the implied promise which the law would otherwise raise against him. (Webster v. Drinkwater, 5 Greenl. (Me.) 319, 322, 17 Am. Dec. 238; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782.)

A cause of action in assumpsit lies in those cases where the tort-feasor deliberately and intentionally, and for the purpose of obtaining some benefit at the expense of another, encourages and knowingly permits or causes a trespass to be committed. (Welch v. Bagg, 12 Mich. 41; Gillespie v. Hendren, 98 Mo.App. 622, 73 S.W. 361.)

The two counts are properly joined and the plaintiff ought not to be required to elect as between them. (Wilson v. Smith, 61 Cal. 209; Rucker v. Hall, 105 Cal. 425, 38 P. 962; Leonard v. Roberts, 20 Colo. 88, 36 P. 880; 5 Ency. Pl. & Pr., 330, 331.)

"Where there is but one cause of action, though stated in different counts, there need be but one finding or verdict. The verdict, in such cases, may be general. It need not mention either count." (5 Ency. Pl. & Pr., 339; Lucas v. San Francisco, 28 Cal. 591; Griffiths v. Henderson, 49 Cal. 566.)

The violation of a statutory duty gives rise to an action ex contractu. (Hodges v. Wilmington & W. R. Co., 105 N.C. 170, 10 S.E. 917, 918; Thomas v. Utica & Black River R. R. Co., 97 N.Y. 245.)

BUDGE, J. McCarthy, C. J., and William E. Lee, J., concur. Dunn and William A. Lee, JJ., dissent.

OPINION

BUDGE, J.

This action was brought to recover damages for the alleged destruction of certain sugar-beets and sugar-beet tops by appellants' cattle. Two counts are set forth in the amended complaint, the second count being subsequently amended. In the first count it is alleged that respondent had leased and was in the possession of 85 acres of land adjoining that owned by appellants, the southerly boundary line of the northeast quarter of Sec. 25, T. 9 S., 36 E., B. M., constituting the southern boundary line of respondent's land and the northerly boundary line of appellants' land; that in January, 1917, the two tracts of land were inclosed by a lawful fence; that during the year 1917 respondent's predecessor in interest and appellant Myers Cohn entered into an oral agreement whereby the latter agreed to erect and maintain one-half of the partition fence between the respective tracts of land and the former to erect and maintain the westerly half of such partition fence; that in the same year the location of the former dividing fence was moved, appellants erecting the easterly half thereof at the new location and the predecessor in interest of respondent erecting the westerly half, such fence as then erected being kept up and maintained in good repair by the respective parties until November, 1920; that at that time respondent's lessor erected a new fence to take the place of the westerly half of the partition fence but that appellants, contrary to the duty imposed upon them by C. S., secs. 1958 and 1959, between October 1, 1920, and November 25, 1920, failed, neglected and refused to keep the easterly half of the partition fence in repair but allowed the wires to become slack and permitted openings to remain in the fence so that it did not present a suitable or any obstruction to livestock; that during 1920 respondent sowed 49 1/4 acres of the land which he had leased to sugar-beets, matured the crop and on October 12, 1920, part of the crop had been harvested, the beets then remaining upon the land approximating 12 tons to the acre, of the value of $ 12 per ton and the beet-tops also remaining upon the land being of the value of $ 250; that on account of the defective condition of the easterly half of the partition fence, cattle belonging to appellants, varying in number from five to one hundred and fifty head, entered the lands leased by respondent upon which the sugar-beets were growing and being harvested, through the easterly half of the partition fence, and ate, scattered, trampled and destroyed approximately 185 tons of beets to respondent's damage in the sum of $ 2,200 and totally destroyed all of the beet-tops to respondent's damage in the sum of $ 250, such damages being occasioned by appellants' failure to keep the easterly half of the partition fence in proper repair.

The second count, as amended, sets forth a cause of action upon implied contract, in which it is alleged that appellants deliberately, knowingly and intentionally caused their cattle to enter respondent's land through the easterly half of the division fence, whereby respondent's beets and beet-tops were eaten up, consumed and destroyed, and by reason thereof appellants thereby impliedly agreed to pay respondent the reasonable value thereof, and in consequence are indebted to respondent in the sum of $ 2,470.

General and special demurrers were filed to each count of the amended complaint but were overruled. A motion to elect was also overruled, as was also a ...