160 P. 746 | Idaho | 1916
This action was brought by respondent to recover from appellant one band resaw, No. 285, and attachments, alleged to be of the value of $1,350. It is alleged in respondent’s complaint that the machine was purchased
It is also alleged in the complaint that prior to the commencement of the action to recover possession of the above-described personal property a proper demand was made therefor and possession thereof refused by appellant; that said personal property was not taken for any tax, assessment or fine pursuant to a statute, or seized under attachment or execution against the property of • respondent. Respondent prayed for judgment for the recovery of the above-described property, or its value in case delivery could not be had.
The appellant in its answer, among other things, denied the ownership or right to possession of the personal property above described in the respondent; denied that the value of said property was as alleged, to wit, $1,350. The appellant admitted in its answer the purchase from respondent under contract of the personal property described in the complaint, but denied that the said contract had not been carried out by the defendant and that it held the property wrongfully and without lawful right or title; denied that demand had been made upon it for return of the property, and affirmatively alleged that such demand as was made was coupled with conditions not provided for in said contract, and without return of or offer to return the purchase money notes executed according to the terms of said contract, and without return of or offer to return the purchase money paid according to the terms of said contract. Appellant admitted that the personal property had not been taken for any tax, assessment or fine pursuant to a statute, or seized under attachment or execution against the property of defendant.
As an additional affirmative defense the appellant alleged in its answer that there had been a former adjudication of the rights of the respondent under its contract, in a former action brought in the district court of the eighth judicial district on June 10, 1910, which action was brought by the respondent against the Bradford-Kennedy Company, wherein the appellant herein intervened and joined with the said
Upon the issues thus made, briefly stated as above, the cause was tried by the court without a jury. The court, after hearing the evidence, made its findings of fact and conclusions of law, and entered its judgment wherein it adjudged and decreed that the respondent was entitled to the immediate and exclusive possession of the resaw, style No. 285, and attachments, and that in case delivery could not be had, that respondent was entitled to judgment against appellant for $1,350, its value, less such amounts as defendant may have paid thereon. And it was further adjudged and
First, the court failed to make findings of fact, conclusions of law and judgment upon the defendant’s counterclaim.
Second, the court failed to make findings of fact or conclusions of law as to the right of the appellant to the possession of the purchase money notes.
Third, the court failed to make findings of fact, conclusions of law and judgment as to the affirmative defense pleaded by the defendant, namely, prior adjudication of the matter in controversy.
Fourth, the court erred in failing to sustain said defense of prior adjudication and in failing to dismiss the plaintiff’s action.
Fifth, the court erred in denying the appellant judgment for the purchase money paid, less the cost of returning the resaw in controversy to Beloit, Wisconsin.
We will first consider appellant’s third and fourth assignments of error, which involve the question of former adjudication. It appears from the record that after the appellant purchased the machinery described in respondent’s complaint the same came into the custody of the Bradford-Kennedy Company, a corporation. Suit was thereupon instituted by respondent to recover possession of its property from the Bradford-Kennedy Company. An answer was filed by the latter company to the complaint of the respondent, and by permission of the trial court the appellant here was permitted to file its complaint in intervention.
On November 17, 1911, said cause being at issue, the same came regularly on for trial before the court and a jury upon the complaint of the Berlin Machine Works, plaintiff, against the Bradford-Kennedy Company, defendant, and the Dehlbom Lumber Company, intervenors. After the evidence of all the parties was offered and submitted, the Berlin Machine Works made a motion for a nonsuit against the intervenors, Dehlbom Lumber Company, which motion was by the trial
If the evidence warranted a finding to the effect that there had been a prior adjudication between the parties to this action on the subject matter, involved in this controversy, necessarily judgment would have been for the appellant, and resulted in a dismissal of respondent’s complaint. It was one of the material issues, and, therefore, clearly the duty of the court to make findings thereon.
We have concluded in view of the fact that we have the original record before us upon which counsel for appellant relies in support of his affirmative allegation, in his answer, of prior adjudication, that it will not be necessary to remand this cause upon this ground, but the findings will be corrected by the trial court. Upon investigation we are satisfied that the contention of appellant of former adjudication is not tenable. There was no final adjudication upon the merits of the action brought by the Berlin Machine Works against the Bradford-Kennedy Company, and the Dehlbom Lumber Company, intervenors. It is a well-established rule that a judgment of nonsuit does not terminate the rights of the parties, and is no bar to a new action. (Homer v. Brown, 16 How. 354, 14 L. ed. 970; Gardner v. Michigan Cent. R. Co.,
We come now to a consideration of the first, second and fifth assignments of error, viz., that the court failed to make findings upon defendant’s counterclaim to which reference has heretofore been made in the statement of facts.
An examination of the findings discloses the fact that the trial court failed to make any findings of fact with reference to appellant’s counterclaim. This, we think, under the well-established rule in this state, was error.
It is alleged in the counterclaim, among other things, that the contract for the sale of the resaw was entered into as alleged in respondent’s complaint, and shipped to appellant from respondent’s factory; that prior to March 1, 1910, the appellant paid to respondent on the purchase price of said resaw the sum of $739; that at the time of the execution of said contract the appellant executed and delivered to respondent three notes, of which mention has heretofore been made; that respondent has never offered to return the money or any part thereof, nor has it returned or offered to return to appellant the notes. The appellant further alleges that upon the election of respondent to rescind the contract for purchase of the machinery, there became due, under its terms, from respondent to appellant, the sum of $739, less the expense of returning said resaw to respondent’s factory at Beloit, Wisconsin, which, appellant alleges, would not exceed $200; and prays judgment against respondent for $739, less the cost and expense of returning the resaw to Beloit, Wisconsin, and for cancelation and surrender of the three promissory notes. The trial court failed to find upon the issues thus made by appellant’s counterclaim, viz., whether under the terms of the contract for the sale of the resaw and at
Adopting the latter portion of the court’s finding of fact No. 4, that “the actual value of said personal property herein described is $1,350”; unless under the terms of the contract or under the evidence submitted on the trial, the purchase money paid by appellant upon the contract can be' applied as liquidated damages, or rent for the use of the personal property, and thus forfeited, clearly appellant would be entitled to a finding in its favor and judgment based- thereon for return of the purchase money paid less the expense of returning the machine to Beloit, Wisconsin. If there were no depreciation in the value of the personal property, as found by the trial court, and payments made thereon are not subject to forfeiture, the respondent could
An examination of the contract will disclose the following provision: In ease of rejection of the resaw and attachments, or failure to pay therefor as provided in the contract, “consignee shall at once return and deliver the property in good order to consignor, f. o. b. Beloit, Wisconsin, .... and that the expense of so doing shall be paid by the purchaser.”
In the absence of any further stipulation or proof of forfeiture of the purchase money paid, while the authorities are divided, it would seem to us that the contract by its terms limits the forfeiture and that the trial court should be controlled thereby. Parties may, in contracting, provide penalties for nonperformance, but unless they do so in unmistakable language, courts will not insert them.
The trial court’s fifth finding of fact is as follows: “That the plaintiff is entitled to the immediate, peaceable and exclusive possession of said personal property described in paragraph 2 of these findings, on surrender to defendant of the unpaid notes of defendant amounting to $750 now held by plaintiff.” This finding would seem to indicate that if the respondent surrendered unpaid notes amounting to $700, it would then be entitled to the immediate, peaceable and exclusive possession of the machinery involved in this litigation. This finding is somewhat indefinite and uncertain. It is alleged in appellant’s affirmative defense by way of counterclaim that at the time of the execution of the contract for the purchase of the machinery involved in this litigation, the appellant executed and delivered to the respondent three promissory notes, one for $300, due in four months, one for $250, due in five months, and one for $300, due in seven months. From the record it appears that all of the above notes are dated January 9, 1909. These are the .notes that are sought to be canceled by the appellant, and, from an examination of the contract, are the only notes given in connection with this transaction. These clearly cannot be the notes referred to in the court’s fifth finding of fact. The cancelation of these notes was one of the material issues
If it was the intention of the trial court that the above-described notes were to be canceled and surrendered as a condition precedent to the right of the respondent to the exclusive possession and right to the possession of the resaw and attachments, a finding should have been made by the trial court upon this issue. The finding as made, to which attention has been called, is not, in our opinion, a sufficient finding upon this issue.
In its finding of fact No. 3, the court finds, among other things, that the appellant has at all times in said complaint mentioned held said personal property wrongfully and unlawfully and without lawful right or title. This finding of fact would seem to conflict with finding No. 5. If it was the duty of the respondent company, before it could lawfully repossess itself of the personal property described in its complaint, to surrender to appellant the unpaid notes “of defendant amounting to $700, now held by plaintiff,” which was a condition precedent, the possession by appellant of such personal property would not be unlawful until a fulfilment of the condition precedent, viz., the surrender or offer to surrender to defendant the unpaid notes of defendant amounting to $700 now held by plaintiff. (Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687, 33 L. ed. 125.) This finding of the court is not based upon any evidence in the case. The material issue between respondent and appellant, upon which it was the duty of the court to find, was: “Was the respondent required, as a condition precedent to its right to the possession of the personal property described in its complaint, to surrender or offer to surrender the unpaid promissory notes described in appellant’s affirmative answer and counterclaim”; upon which the court failed to find.
In its judgment the court decrees, inter alia, that the respondent is entitled to the exclusive possession of the personal property described in its complaint, and that in case delivery cannot be had thereof, is entitled to judgment
If we could construe the court’s language in its findings of fact to mean that the unpaid purchase notes were to be returned to the appellant as a condition precedent to the right of the respondent to the possession of the personal property, still the judgment could not be sustained, because the court has utterly failed to find the amount of the purchase money paid by the appellant to the respondent, and has decreed in its judgment that the respondent shall have judgment, in case delivery of the personal property cannot be had, for $1,350, less such amount as appellant may have paid thereon. Therefore, it would be impossible to determine from the findings the amount that should be deducted from the judgment of $1,350.
Turning now to the contract, the basis of respondent’s cause of action, we find the following provision: “That in case of failure to pay any of the payments as herein agreed, that all shall at once become due and payable and that the consignor or its agent may (at its option) without legal process, take possession of and return to consignor at Beloit, Wisconsin, the above-described property, and that the expense of so doing shall be paid by the purchaser.” While this was one of the material issues raised by the affirmative allegations in appellant’s answer and counterclaim, and upon which proof was offered, no finding upon this issue was made by the trial court. It would seem from the stipulations of the contract heretofore quoted that in any event the expense of returning the personal property to Beloit, Wisconsin, must be borne by the consignee. It was affirmatively alleged in appellant’s counterclaim that it was entitled to judgment against the respondent for $739, paid on the purchase price of the personal property, less the expense of returning such property to Beloit, Wisconsin. There was no finding of the
This court held on rehearing in the case of American Min. Co. v. Trask, 28 Ida. 650, 156 Pac. 1139, that where it appears that the trial court has failed to make findings of fact upon each and all of the material issues made by the pleadings, the judgment will be reversed and the cause remanded for additional findings.
In the case of Jensen v. Bumgarner, 25 Ida. 355, 137 Pac. 529, this court held that there must be a finding of fact upon each and every material issue made by the pleadings, and the failure to so find upon each and every material issue is ground for reversal.
In Lorenzi v. Star Market Co., 19 Ida. 674, 115 Pac. 490, 35 L. R. A., N. S., 1142, this court held that where a defendant files a separate answer setting up affirmative matter constituting a defense, it is error for the trial court to fail to make findings on the issues thus raised, where a finding favorable to the defendant on the issue presented would defeat the plaintiff’s right of recovery.
As stated by this court in the case of Wood v. Broderson, 12 Ida. 190, 85 Pac. 490, the rule is well established in this state that when the court fails to find on all of the material issues, the judgment will be reversed unless a finding thereon
An examination of the judgment suggests a query as to its finality wherein the court decrees that the respondent is entitled to the possession of the resaw and attachments, and in ease delivery cannot be had, to judgment against defendant for $1,350, its value, less such amount as defendant may have paid thereon. What amount has been paid must be ascertained from some source other than the court’s findings, conclusions of law, or the judgment itself.
The judgment in this case is reversed, and the cause remanded with instructions to the trial court to make additional findings upon all of the material issues arising from the pleadings, and to make and enter its judgment in accordance therewith. Costs are awarded to appellant.