Opinion
No. 5369.
April 18, 1930.
APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Dana E. Brinck, Judge.
Action on contract. Judgment for Plaintiff. Affirmed.
E.M. Wolfe, for Appellant.
The complaint should state that the account sued upon was due. ( Holton v. Sand Point Lumber Co., 7 Idaho 573, 64 Pac. 889.)
Elements of the contract of sale.
"The essential elements of the contract of sale, are, first, parties competent to contract; second, mutual consent; third, the absolute property in a thing, which is the subject of the transfer; fourth, a price in money. (Tiedeman on Sales, sec. 3, p. 3; Benjamin on Sales, sec. 87; 35 Cyc., pp. 47, 48-D; Still v. Cannon, 13 Okl. 491, 75 P. 284; Bowen v. Hart, 101 Fed. 376, 41 C.C.A. 390.)
In a suit on express contract for the sale of property at a stipulated price, it is error to permit testimony as the quantum meruit. ( Eidinger v. Sigwart, 13 Cal.App. 667, 110 P. 521; Bowen v. Hart, supra; Pettibone v. Lake View Town Co., 134 Cal. 227, 66 P. 218-220.)
James R. Bothwell, W. Orr Chapman and Wm. Healy, for Respondent.
An averment that defendant is indebted to plaintiff on an account for goods sold and delivered in a specified sum, and that defendant has not paid the same nor any part thereof, is equivalent to an averment that such indebtedness is due and unpaid, there being no averment as to time, terms or circumstances of payment indicating to the contrary. (35 Cyc. 553; Wilcox v. Jamieson, 20 Colo. 158, 36 P. 902; Messenger v. Woge, 20 Colo. App. 275, 78 P. 314; Ahrens-Rich Auto Co. v. Beck Corbitt Iron Co., 212 Ala. 530, 103 So. 556; C. S., sec. 5714; 1 Uniform Laws Annotated, p. 142, sec. 42, and cases cited; Western Seed Marketing Co. v. Pfost, 45 Idaho 340, 262 P. 514.)
Testimony that the reasonable market value of bulls was more than the contract price, which was stated to have been agreed upon, is admissible to show what the bulls were fairly worth to corroborate the version of either party as to what the contract was, both parties, in this case, apparently agreeing that the bulls were offered at a price supposedly less than the market value. ( Lewis v. Utah Const. Co., 10 Idaho 214, 77 Pac. 336; Valley Lumber Co. v. Smith, 71 Wis. 304, 5 Am. St. 216, 37 N.W. 412; Campau v. Moran, 31 Mich. 280; Kirk v. wolf Mfg. Co., 118 Ill. 567, 8 N.E. 815; Allison v. Horning, 22 Ohio St. 138; Misner v. Darling, 44 Mich. 438, 7 N.W. 77.)
An assignment of error specifying that the court erred in giving the instructions to the jury as given by it, without setting out in what particulars the instructions are erroneous, or are not applicable, is too general and insufficient and not reviewable on appeal. ( McDonald v. North River Insurance Co., 36 Idaho 638, 213 P. 349.)
This is an action on contract to collect the contract price of four pedigreed Hereford bulls.
The complaint simply states that in July, 1919, plaintiff sold and delivered to defendant four cattle; that defendant promised to pay plaintiff $1,100 for them; and that no part of the sum has been paid. The answer denies these allegations as to sale and delivery.
Plaintiff testified to the sale of four pedigreed bulls to defendant at the price of $275 each. That his herdsman delivered the bulls pursuant to the sale at the place designated, together with five others sold to one Walters. Walters and defendant's son Wilford divided these bulls, Walters taking five and Wilford Dunn taking four. The four taken by Wilford Dunn were first placed in a near-by field under the control of Wilford Dunn. Later they were taken by Wilford to the home place of the defendant and placed in his fields with other stock.
The defendant flatly contradicted this evidence. He testified he did not purchase or offer to purchase these cattle at any price. That he never authorized Wilford Dunn to receive them. That these bulls or part of them had been with his cattle, but he never claimed them or branded them. That they were considered by him and treated by him as strays upon the open range with his and other cattle. Nevertheless, the record clearly shows that after the bulls were placed in defendant's field by Wilford Dunn, defendant knew of their presence there; and that they remained in defendant's field until the following spring when they were turned on the range by defendant with his cattle and those of other cattlemen of that vicinity.
The case was tried before a jury. The verdict was for plaintiff for $1,796.58, being the amount claimed as the contract price and interest. Defendant appeals and makes five assignments of error. By these assignments it is claimed:
1. That the complaint does not state a cause of action because it does not allege the claim was due at time suit was brought. We find no merit in this contention. (C. S., sec. 6687; Wilcox v. Jamieson, 20 Colo. 158, 36 P. 902; Messenger v. Woge, 20 Colo. App. 275, 78 P. 314.)
2. That the verdict was not sustained by the testimony. We find no merit in this assignment. If plaintiff's testimony is true he was entitled to the verdict returned. This court has repeatedly held that where there is substantial evidence to support the verdict, it will not be set aside on the ground of insufficiency of the evidence. ( Morton v. Whitson, 45 Idaho 28, 260 P. 426; Walling v. McMillan Sheep Co., 40 Idaho 513, 234 P. 152; Woodland v. Hodson, 35 Idaho 514, 207 P. 715.)
3. It is claimed the court erred in permitting plaintiff to testify as to the reasonable value of the bulls sold. It appears that these bulls were the last of respondent's herd and that in the conversation between McMaster and Dunn, McMaster said on that account he was willing to sell the lot to Mr. Dunn and Mr. Walters at a reduced price, but McMaster asserted that the price fixed and understood between him and Mr. Dunn was $275 each. Under this state of the record the respondent was permitted to testify they were worth more than $275. In an action on contract for the contract price it is usually immaterial what the reasonable value of the subject of sale may have been, but in support of the claim that a fixed price was agreed upon, it is often permissible to support such allegation by proof that the price claimed to have been agreed upon was a reasonable price, and especially is such testimony permissible where it is claimed the price charged was excessive and not agreed upon. ( Lewis v. Utah Const. Co., 10 Idaho 214, 77 P. 336; Knott v. Moore-Lamb Const. Co., 111 Ohio St. 94, 144 N.E. 697; Kunitz v. Ruske, 173 Wis. 639, 182 N.W. 347.)
4. Respondent complains generally of the instructions. That the court erred in giving instructions 4, 5 and 7, and in failing to give defendant's requested instructions 1, 2, 4 and 5. We think the instructions given cover the law of the case fairly. We may say the record discloses only four instructions requested by appellant.
The instructions given might not seem as pertinent from the pleadings alone as those offered by appellant, but from the evidence offered in proof of and in disproof of the sale claimed they became pertinent and quite proper. It is not seriously claimed that they contain any misstatement of the law, but only that they were unnecessary and tended to be argumentative. We find they were pertinent and fair and constitute a proper statement of the law with which they deal.
Inasmuch as it is claimed the appellant purchased these cattle without inspecting them, and that he accepted them upon delivery, and appropriated and used them, all of which is denied by appellant, we think the jury was properly instructed as to the law applicable. (C. S., chap. 225, secs. 5673-5761.)
Finding no error in the record, the judgment must be affirmed, and it is so ordered.
Costs to respondent.
Givens, C.J., and Lee and Varian, JJ., concur.