Walker v. Idaho Lettuce Co.

• Decision Date: 08 July 1927
• Docket Number: 4618
• Citation: 44 Idaho 478,258 P. 931
• Parties: L. L. WALKER, Respondent, v. IDAHO LETTUCE COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

258 P. 931

44 Idaho 478

L. L. WALKER, Respondent, v. IDAHO LETTUCE COMPANY, a Corporation, Appellant

No. 4618

Supreme Court of Idaho

July 8, 1927

SALES-ORAL CONTRACT-TRIAL-NO CONFLICT IN INSTRUCTIONS-APPEAL AND ERROR-SPECIFICATION OF ERROR, INSUFFICIENCY OF-MOTION FOR NEW TRIAL-RULE ON CONFLICTING EVIDENCE-FAILURE TO SPECIFY ERROR EFFECT.

1. That seller of onions under contract attempted to exclude doubles and other defective onions from sacks at buyer's request did not justify conclusion that he thereby agreed to deliver onions of No. 1 United States grade.

2. In action on contract for sale of onions, instruction embodying part of C. S., sec. 5741, prescribing buyer's remedies in case of breach of warranty, held not conflicting with instructions defining circumstances under which seller was deemed to have waived right to offer to return onions, or give notice that they failed to conform to contract.

3. Instructions, in action on contract for sale of onions stating that, if jury found contract to be as alleged by plaintiff, they should find for him, held to have fairly presented issues to jury, when taken with other instructions presenting defendant's theory of case.

4. Specification of error to the effect that trial court erred in entering judgment on verdict held insufficient to raise question that verdict for less than full amount claimed by plaintiff is without foundation in evidence.

5. Objection to amount of verdict as without foundation in evidence is not properly before supreme court, and cannot be considered, where motion for new trial failed to specify such contention as ground for new trial, and there was no specification of error covering it.

6. Where there is substantial conflict in evidence as to contract or agreement, and there is substantial evidence to support verdict, it will not be set aside on ground of insufficiency of evidence.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action on contract. Judgment for plaintiff. Affirmed.

Judgment and order denying appellant's motion affirmed, with costs to respondent.

Hodgin & Hodgin, for Appellant.

Where the evidence clearly preponderates in favor of the defendant, it is the duty of the trial judge to set aside the verdict. (McMahon v. Rhode Island Co., 32 R. I. 237, Ann. Cas. 1912D, 1223, 78 A. 1012; Dewey v. Chicago etc. R. Co., 31 Iowa 373; Kansas P. R. Co. v. Kunkel, 17 Kan. 145; Clark v. Great Northern R. Co., 37 Wash. 537, 79 P. 1108; Wilcox v. Rhode Island Co., 29 R. I. 292, 2 Ann. Cas. 760, 70 A. 913; Felton v. Spiro, 78 F. 576, 24 C. C. A. 321; Serles v. Serles, 35 Ore. 289, 57 P. 634.)

By instruction No. 20 the court took from the jury the right to determine the terms of the contract. (14 Am. St. 44; Finch v. Bergins, 89 Ind. 360; Carpenter v. First Nat. Bank, 119 Ill. 352, 10 N.E. 18; Weybright v. Fleming, 40 Ohio St. 52; Lutyen v. Ritchey, 37 Idaho 473, 218 P. 430; Kinzell v. Chicago, M. & St. P. Ry. Co., 33 Idaho 1, 190 P. 255; 20 R. C. L. 272.)

Where the evidence is insufficient to support the verdict, in the interest of justice it is clearly the duty of the trial judge to set aside the verdict. (Bressler v. McVey, 82 Kan. 341, 108 P. 97; North Electric Co. v. Brown, 86 Kan. 903, 122 P. 1026; Brown v. Byers, 115 Kan. 492, 223 P. 477; 2 Thompson on Trials, sec. 2606; Jensen v. Nall, 53 Colo. 212, 124 P. 471; Menefee v. Diggs, 186 Mo.App. 659, 23 A. L. R. 305, 172 S.W. 427; Tathwell v. Cedar Rapids, 122 Iowa 50, 97 N.W. 96.)

The court erred in giving instruction No. 19 for the reason that it fails to state all of the law upon the question and for the further reason that it conflicts with instructions 11 and 12. (Portneuf-Marsh etc. Co. v. Portneuf Irr. Co., 19 Idaho 483, 114 P. 19; State v. Neil, 13 Idaho 539, 90 P. 860, 91 P. 318; People v. Bernard, 2 Idaho (Hasb.) (178) 193, 10 P. 30; Houser v. Austin, 2 Idaho (Hasb.) (188) 204, 10 P. 37.)

Where the evidence is insufficient to support the verdict, it is an abuse of discretion to refuse to set the verdict aside and grant a new trial.

Homer C. Mills, for Respondent.

The record discloses a substantial conflict in the evidence, and under such circumstances the rule is well settled that the verdict cannot be disturbed.

Instructions must be considered in connection with the entire charge, and an isolated instruction cannot be construed by itself and standing alone. (Hayhurst v. Boyd Hospital, 43 Idaho 661, 254 P. 528; State v. Peters, 43 Idaho 564, 253 P. 842.)

VARIAN, Commissioner. Brinck, McNaughton, CC., Wm. E. Lee, C. J., Budge, Givens and T. Bailey Lee, JJ., concurring.

OPINION

VARIAN, Commissioner.--

Plaintiff sued on contract for the sale of certain onions to defendant. The cause was tried with a jury, resulting in a verdict and judgment for plaintiff. Motion for a new trial was made and denied, and defendant appeals from the judgment and order denying its motion for a new trial.

The contract was oral, and the parties do not agree as to its terms. Plaintiff contends that he sold all the onions grown on three acres, estimated at the time of the agreement to consist of about 700 or 800 sacks, for which he was to receive $ 1.75 per hundredweight, the defendant to furnish sacks and twine and haul the onions to the warehouse. Five hundred dollars was paid on account to plaintiff on making the contract. Defendant contends that the agreement was as stated, except that he was to buy 700 or 800 sacks only and nothing but U.S. grade No. 1 onions. Between September 24, 1923, and October 18, 1923, plaintiff sacked 1,358 sacks of onions, aggregating 131,900 pounds, which defendant caused to be hauled from plaintiff's field to the warehouse occupied by defendant at Twin Falls. About October 19th, the parties agreed upon the weights of the onions hauled, and later defendant requested plaintiff to go to the warehouse and have the onions inspected. He did not do so, but brought this action on October 22, 1923. Thereafter, defendant caused the onions to be inspected by a state inspector for the state department of agriculture, who graded them as U.S. grade No. 2. Without tendering the onions to plaintiff, the defendant had them re-sorted and sold in November, when they netted $ 277.71, after deducting the initial advancement and cost of sorting, hauling, etc. As a separate defense, defendant alleged the sorting and grading of the 1,358 sacks to 1,171 sacks, and their sale on the market netting the said sum of $ 277.71. As a further defense, it alleged the sorting and grading of 800 sacks to 713, their sale, and admitting a balance due plaintiff of $ 692.26 on that account, and a balance due of $ 183.28 for the remainder of said 1,358 sacks sold by it. The answer prayed for costs, and that plaintiff take $ 277.71, or in the alternative $ 875.54, and no more.

The first assignment of error is to the effect that the court erred in denying appellant's motion for a new trial, contending that where the evidence clearly preponderates in favor of defendant, it is the duty of the trial judge to grant a new trial. This contention is without merit. While the evidence is conflicting as to the terms of the contract, the jury was amply justified, under the evidence, in finding that it preponderated in favor of respondent. Nor does the conclusion follow that because respondent attempted to exclude the "doubles" and other defective onions from the sacks, at appellant's request, respondent thereby agreed to deliver onions of a No 1 U.S. grade. The jury would have been justified in concluding that...