*1
63
ory which he depart therefrom allowed-to be
he cannot Co.,& v. G. appeal. Ivie W. Jenkins 794; 650, 26 P.2d Wormward
53 Idaho 221 P.2d 686. Taylor, Idaho 70 supported by sub
The verdict conflicting evidence.
stantial, though
“ * * * there is substantial whenever support the same a verdict
evidence 13-219; sec. set aside.” I.C.
shall not Booth, P.2d Idaho
Chapman Spokane International R. Zenier v. Mont Co., 78 & v. V — 1 Oil Ward Co.
gomery P.2d 1106. district court in judgments of the purposes cases, consolidated
the two disposition appeal, are af- trial, respondents. Costs
firmed. PORTER, J., TAY-
KEETON, C. JJ., concur. McQUADE,
LOR
65 *2 S. and Charles Reddoch
Charles F.
Stout, Boise, appellant.
Givens, O’Leary, Givens, Boise, Doane & respondents. TAYLOR, Justice. 1, 1953, (appellant)
On March plaintiff purchased from (respondents) defendants city the hotel business conducted Grand Boise under the name $27,500. purchase price Hotel. furniture, sold all included fixtures, equipment, fuel supplies and hand used in Hotel operating Grand together name with right use the “Grand Hotel” and including a leasehold interest in the the busi- building in which has being ness was The hotel conducted. 54 rooms. appellant action brought
Thereafter this alleged complaint (filed in his amended May 15, falsely 1956) respondents fraudulently represented net in- $1,000 come from hotel business month, per when in such net fact per month; further al- only $300 thereby damaged leged that $10,000. in the sum of Upon trial motion for nonsuit was dismissed, upon granted and the cause that the ground evidence as to the amount any, plaintiff damages, if suffered his was insufficient to sustain a verdict in favor. *4 ruling, correctly
In
court
stated
of damages
measure
for fraud to be
agreed purchase
difference between
actual
and the
value of the
price
Davis,
the time of the sale. Frank v.
-at
67
Ross,
678,
287; Gridley
34
v.
This ruling
Idaho
203 P.
The
was erroneous.
Neeley,
693,
989;
purports
be,
37
217
v.
Idaho
P.
Smith
be,
fairly appears
105;
812,
39
231
Smith v.
a complete
Idaho
P.
pertinent
of the
restatement
John
320;
son,
468,
P.
Weitzel
47 Idaho
276
v.
facts.
ob-
Under
circumstances
these
542; Koeh
Jukich,
301,
jection
P.2d
Boyd
73 Idaho
general. Hayhurst
too
v.
281,
Stenerson,
Cf.,
Hospital,
528;
ler
Idaho
661,
v.
43 Idaho
254 P.
Hobbs
Co.,
v.
Union
Pacific R.
58, 108 P.2d
have
841. The witness should
be one
damage to
recognized
The court
permitted
been
Glennon
answer.
actionable
essential elements
Indemnity Co., D.C.Mun.App.,
Travelers
fraud,
clear
no
“There is
concluded
91 A.2d
The
Ira
witness
E.
croft,
broker,
produced by plaintiff
estate
to the value of the
expert
you
as an
testify
value
when
took it over?
as to the
the property
date of the sale.
Considering
“A.
the business it was
objections
court
qualifica
overruled
to the
over,
doing when I
took
was worth
tion
witness,
of the
at
and after several
$16,000.00 only.”
15 or
tempts
framing
an
testimony
concede the
Defendants
question,
might
ruled that
the witness
property as
owner
to its value is com-
properly
answer. The answer was
stricken
See,
Caldwell,
petent
Rankin v.
evidence.
ground
responsive.
on the
Lat
it was not
108;
Sproat,
P.
Kellar v.
15 Idaho
er
recalled,
fur
the witness was
and after
35 Idaho
205 P.
Thibadeau
ther qualifying,
again
give
asked to
Co.,
Copper Mining
47 Idaho
Clarinda
opinion
his
as to
value
Surety
American
272 P.
Beech v.
sale,
hy
on the date of the
based
an
“To which we make same ob- competent testify Honor, before, your jection we made the owner qualifica- further unrelated, property without incorporates fixing matters his is to be tion, weight of values, damage, it’s measure of his a consideration nothing from has to do with it.” determined fact *5 knowledge experience regard to elements, and in like the other must be estab- it qual- question. in by value want of his lished convincing Unless clear evidence. testimony Hoff, complete ification is so his Such is general that rule. Nelson entirely worthless, However, is for the it it is P.2d 345. is assess its Clarinda the fact injury value. Thibadeau v. of damage, or not the Copper thereof, Mining Co., supra. by amount proven which must be clear and convincing Assume the evidence. grocery Bancroft been in had case a purchaser of defrauded who elects to op and had years, business for thirteen prove forego rescind and He must damages. years for three erated a motel near Boise by clear convincing evidence prior present He had transaction. purchase is worth than the less possession been in But, price. damage is of his amount purchased conducting had been business unimportant provided sufficiently sub- is years testified. he more than three when stantial to warrant rescission. give an qualified Thus he day injury is weight some as its value on So this case if substantial Caldwell, supra. shown, clearly may acquired thereof it. Rankin v. the amount he Cf., Indemnity by evi- preponderance a of the Glennon v. Travelers determined Annotation, dence, supra; Opinion Evidence-Val as in other cases. See C.J.S. ue, seq. A.L.R.2d 967 et Fraud §§ phrase “consid- qualifying Neither is the testimony It was shown I doing when took business it was ering the Smith, books, kept Mrs. who Jean opinion as to to render the it over” sufficient R. is the wife of the defendant who James ap- incompetent. not made to value It Smith, opera that the net income from pear by or otherwise cross-examination $5,- year 1952 for of the hotel tion other ele- plaintiff did not also consider contrasted When this income is 673.22. property. affecting of the the value ments represented net income $900 with the Moreover, a of common knowl- it is matter substantially a $1,000 per month it shows by the wit- factor mentioned edge that the in if the in the than value smaller important most one involved in ness is not represented. as Such had been come property. fixing such damages fraud. But the measure largely deter- going business is value of testimony supports corroborates by its net income. mined by the If believed to value. plaintiff two would show Respondents urge damage jury, that since injury. clearly a substantial fraud, of actionable element essential is an
fig High, agent. a real This in con- estate “Generally, trial court slightly form and different may nonsuit not motion for sidering a propounded wording was evidence, to the witness resolve conflicts weigh the least Objections five all credibility times. of such therein, pass questions were sustained answer of jury’s or the witnesses, being of such hy- Barker, witness stricken. While all function.” Julien *6 pothetical questions clearly incompe- were 413, 272 723. P.2d tent description the containing as not sufficiency of the evidence testing In the except to be evaluated the one and nonsuit the trial court motion for on a question quote we will which hereinafter accept thereof the version must this court discuss, hypothetical ques- all of such plaintiff. Where most favorable predicated upon tions were wrong the the- competent evidence substantial there is ory proof damages. hypo- The one plaintiff’s case, or tending to establish question thetical permitted which the court may to minds differ as reasonable where objection answered, to over be reads fol- therefrom, reached to be conclusion lows : jury. Nis be submitted to the cause should Protective Idaho Timber v. Southern sula High, case, “Mr. in let’s assume this 37, 245 McKee Ass’n, High, Mr. the record shows here that Koser Chase, 253 P.2d 73 Idaho plaintiff here, Bancroft, Mr. on or 988, 44 Hornback, 265 P.2d March 1933 bought about the Grand A.L.R.2d City, Idaho, Hotel in Boise at which portion time he took over the unused this in foregoing rules Application of the premises, prem the lease to1 judgment is requires a reversal. The case being located on ises the southeast cor for a the cause is remanded reversed 11th Main ner of Street in Boise trial. new Idaho, City, and that hotel was appellant. Costs to rooms, representation based gross monthly income of that SMITH, J., KEETON, J., and concur. C. hotel was a month and that $2400.00 net income a thousand dollars a PORTER, Justice, Mc- with whom month, when as a matter of fact for the QUADE, Justice, (dissenting). concurs year, year year last be fore the transaction occurred gross attempted Appellant to establish $24,486.53 of that hotel was by damages an amount of his witness, $18,813.31 expense with question addressed to the Ira E. an and with $5,673.22, year previous I like a net return of would matter of fact for $24,486.53, your gross as to the difference income was $18,813.31, $27,500.00 gross expenses value of and what $5,673.22?” your income was judgment should be the net figures.” on those based objection permitted Over the witness was question, being to answer such the answer attempt objections In an to' overcome as follows: question, appellant fol- added the “Well, I my would like to> answer lowing : they way, and then if own want ask “(By Reddoch) Now I’ll Mr. add explain question, I’ll I me a it. would you adequate give an say $27,- that the sold involved, description 000.00, was, figure whatever Hotel, known the business as the Grand representation it earned a thousand wit, furniture, equip- fixtures, all month, and it earned dollars a around ment, by supplies, fuel hand owned year instead of a 5600 a thousand a parties them in con- said used month, per would about 45 cent operation of that cer- nection with what the actual value of the hotel what business conducted at tain hotel referring I’m not be worth. would Boise, *7 Hotel in known as the Grand is estate; referring I’m to the the real Idaho, County, the together with Ada sold, leasehold, fur- stuff was the that name Grand rights of the use of the and forth.” fixtures niture and so and to leasehold in Hotel and interest of motion was answer the witness on The Boise building in certain situated that responsive. as not the court stricken County, Idaho, City, located on Ada does not that the The evidence disclose 11th of intersection corner the of the personal proper- High ever saw the County, witness in Ada Main Street and question in ty is defective involved. The Smith known as the State of description not contain a the does of you Building. giving the value of Now the or its of furniture of kind and'character and March property the date was repair, of the condition of you age and 1953, this the 1, will tell now hand. It of -fuel on is evident this your amount judg- in in value difference question hypothetical and the answer there- bought property that of ment predicated upon wrong theory to were representation a $27,500.00 a of at presen- damages. of In per monthly income measure $2400.00 gross case, appellant tation of his entire took the gross a net income of a and month damages month, position that the measure of a when as a dollars thousand
71 $1,- represented probative may such difference between the and its value trifling. be per 000 Surety and the actual Beech v. American month net income $5,673.22 159, 213; applied income, net annual to be United States Land, D.C., F.Supp. 3969.59 purchase price percentage to the a basis. Acres pro- 837; page Bliss, the actual at While net income of Asebez v. Cal. Evidence, 172 P. ducing property Am.Jur., value is an element of the property, of such a Section page difference between Hellstrom First represented Guaranty Bismarck, net income cannot Bank actual 54 N.D. applied percentage basis and be used on N.W. A.L.R. 1487. price purchase
to show the amount question The of counsel and the answer damages. appellant as to property the value of the court, ruling upon hypo- in The trial predicated upon were preceding questions effect, ap- suggested in questions, thetical appel- answers and in accordance with proof proper damages, pellant the one theory lant’s that the difference between “Yes, saying, if will point counsel ask what represented net income and the actual net the value was on that date he believes property income from the applied was to be property conveyed in there the with include percentagewise purchase price to the in de- question.” it, him to allow answer the I’ll termining the value of the at the upon suggestion. not Appellant did act we time of sale. As have heretofore sustaining court did not ob- err trial pointed theory out this incorrect con- questions hypothetical pro- jections to sequently appellant the answer of as striking answer of pounded nor upon is based a false witness, High E. Ira premise probative and has no value. permitted to be answered. damages The evidence as to being insuffi- permitted testify go any jury, alleged cient errors follows: ruling trial court in admis- Bancroft, opinion, your Mr. “What is prove sibility tending of evidence fraud value of the when as to immaterial need become not con- ? Considering A. it over you took sidered. doing when I it was took business *8 $16,000.00 err or The court did not in sustaining trial was worth over, for nonsuit entering the motion the only.” upon judgment ground of dismissal of concede that Respondents wholly insufficient show property as to its value is com- evidence to owner any, damages, appellant. if However, weight the amount evidence. petent judgment preponderance court should be amount trial thereof from a the evidence. affirmed. KEETON, J., SMITH, J., C. concur.
On Respondents’ Petition Denial of Rehearing. for McQUADE, PORTER JJ., dissent. TAYLOR, Justice. petition rehearing In their for a re
spondents urge great length that requir opinion
majority is in error not prove only plaintiff below
ing the not damage, of substantial fact. hut damage
exact amount of
order
avoid nonsuit. Appeal M. FAR In the Matter of of R. respondents complain Particularly Equalization of MER from Board in the inaccuracy the statement County, of State Tax Bannock and Order year 1952 was income that the net for the Commission. re- inaccuracy according $5673.22. Plaintiff-Appellant, FARMER, R. M. out fact spondents arises deter- gross income, used as basis COMMISSION, STATE TAX Defendant- income, only included mining the net room Respondent. profit made the hotel rent and not No. 8604. telephone guests’ laundry calls. Supreme income, Court Idaho. to such other the defendant As insignificant testified would Smith April 23, 1958. compared with the room rent.” The “as Rehearing May Denied income cannot be determined ac- gross Smith curately from the record. Mr. professed evasive, witness very little ex- about
know managed. which he
penses of the business figures
However, accepting given by petition, their it nevertheless
respondents in clear made a show-
appears that injury, and sufficient
ing of substantial determination of the
present