Zach v. Pond, 5687

CourtUnited States State Supreme Court of Idaho
Writing for the CourtGIVENS, J.
Citation50 Idaho 685,299 P. 666
Decision Date23 May 1931
Docket Number5687
PartiesFRANK 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). [50 Idaho 686]

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 [299 P. 667]

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.

[50 Idaho 687] 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...

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4 practice notes
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...Idaho 170, 226 P. 668; Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381; Hammond v. McMurray Brothers, 49 Idaho 207, 286 P. 603; Zach v. Pond, 50 Idaho 685, 299 P. 666; First Security Bank v. Enking, 54 Idaho 735, 35 P.2d 266.) The judgment appealed from is affirmed. Costs are awarded to respond......
  • Ore-Ida Potato Products, Inc. v. United Pac. Ins. Co., ORE-IDA
    • United States
    • United States State Supreme Court of Idaho
    • April 30, 1964
    ...a restriction in, or an exception to that liability (in this case the limitations of the statute) is upon the surety. Zach v. Pond, 50 Idaho 685, 687, 299 P. 666. The trial court found that the transactions involved in the exhibits 4 and 5, '* * * were fully, wholly and entirely consummated......
  • Lebrecht v. Union Indemnity Company, 5940
    • United States
    • United States State Supreme Court of Idaho
    • June 2, 1933
    ...is not required to be an express contract. (Stearns on Suretyship, secs. 17, 33; 1927 Sess. Laws, secs. 2, 6, 8, chap. 236; Zach v. Pond, 50 Idaho 685, 299 P. 666; Duckwall v. Jones, 156 Ind. 682, 58 N.E. 1055, 60 N.E. 797.) WERNETTE, J. Holden, J., and Sutphen, District Judge, concur. MORG......
  • Bowman's Estate, Matter of, No. 12706
    • United States
    • United States State Supreme Court of Idaho
    • April 17, 1980
    ...was claimed during the decedent's lifetime or whether the burden is on the objector to show that one was claimed. In Zach v. Pond, 50 Idaho 685, 299 P. 666 (1931), this court addressed the question of who has the burden of proving an exception and adopted the federal rule announced in Grand......
4 cases
  • Bicandi v. Boise Payette Lumber Co., 6037
    • United States
    • United States State Supreme Court of Idaho
    • May 3, 1935
    ...Idaho 170, 226 P. 668; Stedtfeld v. Eddy, 45 Idaho 584, 264 P. 381; Hammond v. McMurray Brothers, 49 Idaho 207, 286 P. 603; Zach v. Pond, 50 Idaho 685, 299 P. 666; First Security Bank v. Enking, 54 Idaho 735, 35 P.2d 266.) The judgment appealed from is affirmed. Costs are awarded to respond......
  • Ore-Ida Potato Products, Inc. v. United Pac. Ins. Co., ORE-IDA
    • United States
    • United States State Supreme Court of Idaho
    • April 30, 1964
    ...a restriction in, or an exception to that liability (in this case the limitations of the statute) is upon the surety. Zach v. Pond, 50 Idaho 685, 687, 299 P. 666. The trial court found that the transactions involved in the exhibits 4 and 5, '* * * were fully, wholly and entirely consummated......
  • Bowman's Estate, Matter of, No. 12706
    • United States
    • United States State Supreme Court of Idaho
    • April 17, 1980
    ...was claimed during the decedent's lifetime or whether the burden is on the objector to show that one was claimed. In Zach v. Pond, 50 Idaho 685, 299 P. 666 (1931), this court addressed the question of who has the burden of proving an exception and adopted the federal rule announced in Grand......
  • Lebrecht v. Union Indemnity Company, 5940
    • United States
    • United States State Supreme Court of Idaho
    • June 2, 1933
    ...is not required to be an express contract. (Stearns on Suretyship, secs. 17, 33; 1927 Sess. Laws, secs. 2, 6, 8, chap. 236; Zach v. Pond, 50 Idaho 685, 299 P. 666; Duckwall v. Jones, 156 Ind. 682, 58 N.E. 1055, 60 N.E. 797.) WERNETTE, J. Holden, J., and Sutphen, District Judge, concur. MORG......

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