Cooper v. Wesco Builders, Inc.
281 P.2d 669
Idaho
1955
Check Treatment

*1 281 P.2d 669 sole, Plaintiff, COOPER, a feme

Helen BUILDERS, Inc., corporation, a

WESCO Murrаy Burns, Murray Burns, and E. W. co-partners, doing Burns, busi- M. Robert style of under the firm name ness Plumbing Co., Murray Electric Burns corporation, Company, E. P. Service firm Wassler, doing business style P. Wassler Sheet of E. name Bank, Co., State Continental Metal corporation, Defendants. WASSLER, individual, doing busi-

E. P. style E. under the firm name ness Murray Co., W. Metal Wassler Sheet Burns, Burns, Murray аnd Robert M. E. Burns, co-partners, doing business under Murray style Burns name and the firm Company, Cross-complainants- Plumbing

Appellants, BANK, corpora- STATE

CONTINENTAL Cross-Defendant-Respondent. tion,

No. 8091.

Supreme Idaho. Court of 18, 1955.

March *2 Boise, Marcus,

Hawley appellant. & *3 Boise, Burke, respondents. Elam &

ANDERSON, Justice. previously action was before us

This ¡demurrer appeal sustaining an order a request a also the argued amend granting Bank and were Continental State of trial, separate jury for a both were denied. motion from the second to strike aрpellants’ cross-com- causes of action trial proceeded The case to before then Builders, Inc., plaints. Cooper v. Wesco and, jury court a as between- the without P.2d parties appeal, the this resulted in to judgment in favor of Continental State ap- in only parties the first involved Bаnk. present peal are identical with those

appeal. They the Bank above- Burns, are: Appellants, claim the Wassler Wassler, individual, mentioned, in striking District Court erred their affida- Company, part- Murray Plumbing Burns prejudice vits of and in not permitting nership. the demur- This Court overruled case; hear in judge refusing another to to strike granted rers and the motions permit them to to amend their cross-com- part part. them in denied plaints; denying them a and that the court in the admission erred and exclu- May 21, 1953, pleadings were amended certain evidence sion of and exhibits. by stipulation parties to to conform appellаnts Counsel for cited the case of Supreme Court and Featherstone, Price v. 1, 1953, Bank filed. answer of June 143 A.L.R. contending the the case for trial for the District Court set court could take no further action after the 29, 1953, jury, and without without June filing prejudice, an affidavit of than other objection. Wassler and June judge. tо transfer case another This statutory prejudice affidavits of Burns filed upon case was decided in based Section and on the same against judge trial 1-1801, I.C. Section was for a motions trial. date filed written by adding , these words: amended a motion strike Bank filed June further that no such “Provided affida- prejudice on ground the affidavits may filed in case after vit provisions contrary filed matter relation contested 1-1801, Idaho Code. Section June litigation has been submitted for deci- by the stricken court without affidavits were sought disquali- any judge to be sion *4 22, motions to amend the hearing. June fied.” cross-complaints by striking request any out or allow- establishment of liens by the affidavits filed Each Was of made, attorneys’ were of fees but the ance statutory was and and Burns neither sler alleged ‍‌‌‌‌​‌‌​​‌‌​​‌​​​‌​​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌​‌​​‍grounds of were not verified. or actual the set out amendments June trial, part judge, of the proposed a motion to strike other Bank filed bias n amendments judgе that the sustained demurrers motions to than June re- reason and it of discretion and

cross-complaints giving was an abuse without necessarily not not versible error for the trial court holding. are for so These permit left As heretofore them. would then have prejudice. This acts actual passed equitablе on a action not an mentioned, judge had law on fraud and the trial case, the matters, being, in this one. contested The strike. and motions to demurrers plaintiff joined equitable and “Where timely filed affidavits, therefore, were not legal equitable issues in one action and court. by the trial properly denied

and were issue had date become academic on I.C.; Medley, parte Ex 1-1801, Section beyond through of trial circumstances 794. Idaho 253 P.2d plaintiff, plaintiff not control was erred re- Appellants claim court barred from on re demanding plead- permit to amend fusing them of action dam maining cause seeking equitable portions all ings so as to remove Cooperman, ages at law.” Vincent v. the establish- pleadings, requesting 204 Misc. 125 N.Y.S.2d 307. attorneys’ foreclosure, liens, ment alleged properly fraud is “Where action of fraud thus leave fees and party one and denied other trial. them to entitle issue сonflict- Respondent contends amend question of fact to be ing, is one deter- refused, properly ments were because by jury proper instruc- mined required by were not verified as Rule 74 Stapleton Holt, tion.” 207 Okl. Rules, requires of the District Court which 452. proposed amendment, if verification also, pleading C.J.S., Fraud, p. was original verified. This See § applicable pro not be to these rule b, C.J.S., Juries, p. and 50 731. since they were not posed amendments question In determining new, part but anything taking

adding parties or cross-complaints are entitled to a everything whether out of had been jury, left verified. must look trial courts to the ulti sought. entire The mate and relief ultimate liberality should be shown Great is to in this case recover relief pleadings amendments allowing Gorham, Rees v. 30 Idaho for fraud. parties. justice between furtherance McLaurin, 88; Cleland v. 164 P. Bice, 5-905, I.C.; Hill Section 371, 232 P. 571. 167, 139 P.2d of Farmer recent case Loof- prej have been could not ‍‌‌‌‌​‌‌​​‌‌​​‌​​​‌​​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌​‌​​‍Bank 113, 115, bourrow, the amendments permitting of by the udiced *5 Loofbourrow, trial, jurisdiction. this its Farmer v. of a right relative to supra. Court stated: errors respect Appellants is well several contend rule in

“The this exclusion Pomeroy’s were made the admission Equity forth set Juris- action, lati much Ed., the notes fraud 178, and of еvidence. In a prudence, 4th § in the admission therein, tude should be allowed as follows: Even fraud. to tending show “ ‘ * ** the cause of Even when not show itself though may the evidence action, upon legal right, does based circumstances, fraud, may many it be one of with, is present, or connected involve or others, which, tend to with when taken or incident of particular feature some 92-104, Fraud, pp. C.J.S., it. §§ show which as those over kind the same 390-410. ordinarily jurisdiction the concurrent fraud, accounting, (Plaintiff’s exhibits extends, as One of such court, remedy still, legal the trial if admission like, #20), denied for debt judgment insurance to Fed pecuniary for was the commitment action complete, suffi- This was Administration. Housing would be or eral is, opinion, do former in its cient, error, as this Court certain—that parties—in litigant Wesco, supra Cooper justice full [73 230], specifically stated: ju- particular the concurrent “ * * * equity does not extend risdiction not certification be- This еxample, For case. whenever such appellants, would not be ing made at law furnish an ade- an action will them, C.J.S., Fraud, actionable remedy, quate assume equity does not pertinent be page but would § jurisdiction accounting because respondent’s course of con- showing needed; because the or nor demanded appellants to persuading duct relative fraud; or arises from case involves bearing file liens and as not sought a contribution is because nor respondent’s scienter and intent. indebted; persons jointly nor Fraud, page 262.” C.J.S., § trust, money held in to recover even (Plaintiff’s deeds Exhibits 21 monеy had and re- an action where personally 22) showing bank officials (Emphasis supplied.)” lie.’ ceived will property Idaho Falls dealing appellants areWe been have admitted under project, should trial and the denial of entitled to However, authority. these and the above right exists under right, where evidence, rulings relative to the the other Constitution, I, require or stat- alone, Art. re would not standing our State exceeding in the court versal. result utes, would (cid:127) presumed

'Fraud is sentation he must show .been has proved by damaged prejudiced and must be clear and con or because of it. vincing Hudgel, 23 damages, Nеlson v. If he seeks he must .evidence show the . Hoff, C.J.S., Fraud, Nelson v. amount of his loss.” *6 354, 103, pp. 70 Idaho 218 P.2d 345. 408-409. § case, prior appeal the of this we held In framed, the “Negatively rule as to- cross-complaints appellants the stated case, damage, in any what constitutes holding causes of action for fraud. Our may broadly be stаted to be that there case; however, became the law of the damage position is no where the of the support plead- if evidence does not the the complaining party is no worse than prove ings to such an extent to fraud and it be alleged would had the fraud not damage, appellants could not re- resulting 994, been 23 committed.” Am.Jur. proving have cover. They burden Deceit, Fraud and 175. § damages by preponderance of the evi- “The damages certain, must also be dence. is, clearly that such as can defined be buyer “The make failed to out a case and ascertаined.” 23 Am.Jur. question for on of automobile ; ; Deceit, . Fraud and 176. § seller’s in misrepresenting fraud stand price of pur ard' automobile selling opinion appellants areWe absence of chased'in evidence of required under proved as have Gray price what such Wik v. and, careful after a above authorities Motors, strom Wash.2d P.2d 497 that decided study we have . damages-what proved any require “It is too neither of well established to them damage citation of cases that soever, is preponderance of the either requisite actionability. It element is evidence, -to at' are unable оr We all. to note that it is1stated- in Sufficient they more or ascertain whether recovered- historic leading Pasley case Free they they filed than would have if bad less Reprint (1789) Eng man 3 TR (cid:127) litigation foreclosure liens cause -and repeated 12ERC in many would, therefore, ensue. It be 'useless t-o cases, subsequent that alone, fraud reverse and remand this back for to case' damage, actionable, is not without nor McVay, a new trial. Estate of re fraud, damage without is but when 28; 93 P. Hale v. McCammon . concur, an action lies.” 32 two A.L Co., Ditch 72 Idaho 226, Fraud, 23. R.2d Cooper Oregon Co., Short R. Line party, seeking damages ‘‘The оr re- Clark v. Chrishop, Idaho 313, 262 lief the ground repre- of a false page at P.2d

285.- is Builders. and the officers of Wesco Court District judgment respondents. No concealment or is to- falsehood made to Costs awarded affirmed. appear. appears contrary, On the it that PORTER, J., concurs. plaintiffs fully per- аll were advised of upon judg- tinent facts and acted own TAYLOR, Justice, with whom Chief ment to the best course them spe- SMITH, Justice, (concurring concurs pursue. They $8,000' that advised cially). pay-roll government, tax due in the I concur Justice $3,000 creditors, due numerous small would may be as it ANDERSON, except ‍‌‌‌‌​‌‌​​‌‌​​‌​​​‌​​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌​‌​​‍insofar paid have be legal order to avoid inference therefrom glean possible to proceedings which prevent the com- false record of evidence there pletion and orderly marketing of the build- officials. bank representations made ings on which expended had materials show fail to Not does fаcts, Knowing labor. they ac- these repre- any false damage, to show it fails cepted the bank’s offer advance the my As stated made. sentations were $11,000, urgently needed to continue opinion, Cooper Wesco first dissent project and to allow the structures 383, 253 Builders, Inc., *7 completed marketed, and return in for their be might representations which the agreement not file liens. In addition with such were reference considered as they duplexes, title to received share projects. Falls and Falls the Twin Idaho cash, in the of distribution available and in, appears Idaho proof is it the Now the bеnefits, other all of appear which would by the prosecuted in fact project was Falls greater to be than re- have profits therefrom Wesco Builders and the government had the ceived its exercised paid the de- for into were accounted and taxes, first lien and for had the creditоrs agreed. Falls The Twin fendant bank as engaged in a mad scramble for was what as project, having not been commenced left, pursuing in rights. their lien Falls, early at was carried as that Idaho light In the of facts the these state- name Con- on the of Northwestern by representatives, ments the bank’s that Company, the financial because of struction they thought there enough profit would be of the How- difficulties Wesco Builders. Falls the Idaho and Twin proj- Falls ever, profits its were likewise accounted pay creditors, ects the were not fraudu- paid for into and the defendant bank lent. agreed. BECKWITH, Judge (concur- District meetings September, At creditors’ the ring specially). 1950, 1949, January, all of the sur- and freely fully I concur with rounding dis- Chief TAY facts were and Justice officials, LOR, except I do plaintiffs, that concur with by cussed the the bank not 286 following by re- denial in the of the motion trial the .majority for

the trial not spects : court was error. Helen

The action was commenced prior Cooper appeal, the Wesco v. adjudicate the Cooper 226, to have the court Builders, Inc., 383, 253 P.2d Idaho her on and Burns filed liens of Wassler only, pleadings court dealing was with attorneys’ and property for and alle made the determination that the case, equity fee, essentially an was which gatiоns concerning FHA certificate Burns, defendants, Wassler should not be from the cross- stricken complaint, the amended having answered complaint. attempt It did not to determine jurisdiction. .-give trial court materiality as evidence certificate Hence, subsequent on a trial case. trial guarantee of The constitutional admissibility Exhibit “20” would v. equity cases. Morton apply not does o have t be measured evidence Co., 241 P. Realty Idaho Morton Marcus’ case. .Mr. statement form that the Niichels, 1014; 48 Idaho v. Johnson required certify mortgagee to whether -the 840; Place, Brady 284 P. v. 41 Idaho any there were liens or enсumbrances Therefore, P. P. Wassler against property, would show ex Bums matter could demand as a hibit to immaterial to because by jury right trial cross-com there showing was no Niichels, plaint. v. Johnson liens or were filed encumbrances Case, 840; Dover Lumber v. Co. against property prior time to the & 170 P. Burke Land Idaho insurance, the certification the FHA Wells, Co., Fargo Livestock v. & 7 Ida Co. meeting evidence of a creditor’s 87; Fogelstrom Murphy, v. 60 P. ho September, having admitted been Anderson among wherein a settlement made all Whipple, 71 227 P.2d 351. Builders, of Wesco creditors con equitable jurisdic having obtained court Addition, сerning Springs the Warm pur will of the case retain it for all tion making bank ‍‌‌‌‌​‌‌​​‌‌​​‌​​​‌​​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌​‌​​‍officials’ acts in the certifica Niichels, supra, poses. followed Johnson FHA tion to the was not material to the supra; Murphy, Haener Fogelstrom isSties the case. *8 Albro, 73 249 v. Idaho P.2d 919. findings bank a case the of a are Defendant and the Bank of Eastern institutions, Johnson, state advisory. v. Idaho Idaho are their offi- Tomita 395; Brown, are borrow money cers entitled to Johnson Nuquist 26-603 There them. no I.C. is Idaho Bauscher, conditions of this that section were A.L.R., 1147, page Likewise, The at violated. is annotation there no evidence appear in that the officials names whose “22”, deeds, did not Exhibits “21” and property,

pay price for the the full contract

including construction costs thereon, described in

houses located

deeds, their loans or that defaulted in Further, no evi-

in manner. there bank these in record show

dence the cross-

officials in manner mislead loans on

complainants regard Falls

properties owned them hence, deeds, “21” and Exhibits

project, irrelevant

“22” are immaterial and denying not err and the court did

their admission. be affirmed. judgment should

281 P.2d 665 CORPORATION, EUREKA

In re CENTRAL Payment of Contributions For Security Employment Law. AGENCY, SECURITY

EMPLOYMENT Idaho, Appellant, State CORPORATION, EUREKA CENTRAL Gen., Smylie, Atty. E. W. Robert ‍‌‌‌‌​‌‌​​‌‌​​‌​​​‌​​‌​‌​‌‌​‌​‌​‌‌​‌​‌‌​​​‌​‌​‌​​‍John Respondent. Gen., appellant. Atty. Gunn, Asst. No. 8192. Supreme Court Idaho. 23, 1955.

March