Zach v. Pond

• Decision Date: 23 May 1931
• Docket Number: 5687
• Citation: 50 Idaho 685,299 P. 666
• Court: Idaho Supreme Court
• Parties: FRANK ZACH, Respondent, v. W. C. POND, Defendant, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant

299 P. 666

50 Idaho 685

FRANK ZACH, Respondent, v. W. C. POND, Defendant, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Appellant

No. 5687

Supreme Court of Idaho

May 23, 1931

APPEAL AND ERROR-ASSIGNMENT OF ERROR, SUFFICIENCY OF-FACTORS-STATUTORY EXCEPTION-BURDEN OF PROOF.

1. Reviewing court will not consider insufficiency of evidence in absence of specific assignment of error in brief.

2. In action against farm produce dealer and surety for balance due on sale of potatoes, burden of proof was on defendant, as regards exceptions in statute (Laws 1927, chap. 236, sec. 2 as amended by Laws 1929, chap. 180).

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

Action on produce dealer's bond. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Frank T. Wyman and Frank T. Wyman, Jr., for Appellant Fidelity & Deposit Company of Maryland.

The evidence in the case does not bring plaintiff's claim within the provisions of the statute under which he sues. (1927 Sess. Laws, chap. 236; 1929 Sess. Laws, chap. 180; Steele v. Blunck, 50 Idaho 244, 295 P. 426.)

Sweeley & Sweeley and J. H. Barnes, for Respondent.

The respondent was not required to show that he was to be regarded as a consignor within the meaning of the statute, or that the transaction between him and Pond was governed by the statute pursuant to which the latter had given bond and obtained his license. The burden was on appellant to show that the statute did not apply. (Huson v. Richard Brown, Inc., 90 Misc. 175, 154 N.Y.S. 131.)

GIVENS, J. Budge, Varian and McNaughton, JJ., concur.

OPINION

GIVENS, J.

Respondent sued defendant Pond as a produce dealer, and appellant Fidelity & Deposit Company of Maryland, as his surety, under chap. 236, Sess. Laws 1927, amended chap. 180, Sess. Laws 1929, for a balance of $ 1847 due on a sale of potatoes by respondent to defendant Pond, December 23, 1929, with interest from said date at seven per cent per annum.

The Fidelity & Deposit Company of Maryland, the only appellant, admitted that Pond was a produce dealer, and that it was his surety, but generally denied that the particular sale was within the terms of the statute.

At the trial, defendant Pond, as a witness for the respondent, testified that $ 1847 was the balance remaining due for potatoes purchased by him from respondent.

Respondent's son, who kept his father's accounts, testified in substance to the same effect.

Appellant assigns as error that respondent failed to prove fraud; that respondent was a consignor as defined in the statute, and that the potatoes were not purchased by Pond for his own use, or for retail sale in the state, or not sold in less than carload lots in retail trade; in other words, as to the last contention, that respondent did not show that the transaction did not come within any of the exceptions noted in the second sentence of section 2 of the act in question.

Section 6 of the act expressly provides that the bond shall be for the benefit of any consignor having a cause of action arising out of a breach of contract either express or implied, or in the alternative, fraud.

The record discloses at least an implied contract to pay for the potatoes purchased, and the trial court was justified in concluding that delivery had been made.

Whether the contract was for cash in hand or upon delivery, is, under the circumstances herein, immaterial, because the full amount was not paid at either time, and Pond's testimony that the $ 1847 was due at the time of the trial negatived any idea of credit extended.

Appellant did not assign as error the lack of evidence to show a delivery in carload lot or lots, and while if the body of the brief this failure is commented on, in the absence of a specific assignment of error thereof, we need not consider such point.

Respondent therefore made a prima facie showing that he was a consignor within the first portion of section 4, and it is unnecessary for us to consider, and we do not herein consider, the latter portion of said section 4.

There remains the question of the burden of proof with regard to the exceptions in the second sentence of section 2. Appellant admitted that Pond was a farm produce dealer as defined in the first sentence of section 2, but contends that the burden was on respondent to prove that this sale was not within any of the exceptions. Section 2 is as follows:

"A farm produce broker, farm produce dealer, or farm produce commission merchant, within the meaning of this Act is any person who shall contract to purchase, or who shall handle for compensation or promise thereof, for the purpose of resale or sale or who shall handle on account of or as an agent for another, any farm produce as herein defined, or who sells or offers for sale, who buys or offers to buy, negotiates or offers to negotiate the sale or purchase of fruits, vegetables and products of the apiary or any interest therein, either directly or indirectly. The provisions of this act shall not apply to any person who grows or produces farm produce, or purchases farm produce for his own use, nor to any person, who, being the owner of such farm produce, sells, exchanges, or otherwise disposes of it for his own account, nor to any person who makes purchase of such farm produce for the purpose of retail sale within the state, and who does resell such farm produce in less than carload lots and in the retail trade within the state. . . . "

While there are authorities to the contrary, we deem the following in point, and controlling:

In Grand Trunk R. Co. v. United States, 229 F. 116, ...