*1 281 application liberality The candidates rule names containing umn laws, ofwill of election end that the construction to the party. If particular aof voter, clearly expressed, should not then, mandate adopted, under the grounds, on laws thwarted technical is adhered election 34-903, I.C., nothing in our § jurisdictions. to in Elec- writing C.J.S., most “prevent voter could tions, voting Am.Jur., Elections, is §§ column he §§ ticket e. the his 174— [i. 184-195. any person for preparing] or the name office, and for an whom desires to vote he We conclude that the write-in votes if be counted the same such vote shall cast respondent, by for the writing of his by the
printed upon marked ballot name in Republican blank col (Emphasis supplied.) voter.” umn for probate the office of judge, were properly credited to him in official prefer However, we to conclude count. upon proposition legisla issue voting, ture has made the method is affirmed. Costs re- I.C., mandatory indicated in or § spondent. 34— exclusive, and that the voter has where
clearly expressed choice, apparent his an PORTER, J.,C. and GIVENS, THOM- AS, comply KEETON, statute, JJ., effort to with and in concur.
a manner which contrary thereto, is not his valid
vote is must is counted. This
the rule legislature declared in 34- §
1202, I.C., first enacted in 1891 and which
has continued force without amendment present time,
to the
wit:
not be counted: that when a May 5, 1953. sufficiently ballot plain gather Rehearing Sept. 29,1953. On part therefrom a of the voter’s inten- tion, it shall be duty judges part.”
to count such jurisdictions have so and other
Montana similar statutes. See Peterson
construed
Billings, 109 Mont.
28B *3 Hargraves, Peterson, Gee & Zener & Pocatello, appellants. for Baum, Whittier, R. R. Mark B. O. M.
Clark, Pocatello, respondents. for PORTER, Chief Justice. by respondents, plain- is an action
This below, alleged damages tiffs to recover pur- in connection with a contract of fraud a home to built in Pocatello.. chase of complaint Respondents’ was amended be- during lengthy fore and trial. It is repetitious contains much and evi- dentiary matter. In order this, present questions involved in appeal, necessary we deem it to summarize parts the material amended com- plaint. alleged complaint
It the amended Stenerson, doing I. S. under business *4 firm Homes, the name of Builtrite and the Smith-Marshall Agency, commenced development within the limits of the Pocatello, City of known as the Northland pursuant Addition. That contract to a be- defendants, agreed tween said Stenerson to- sheathing, dry interior con- tion wall therein certain construct construct and did 8"x studs, struction, 2"x4" 2" floor and Builtrite Homes homes known as the plain- joists; particularly the home of more usual obtained
tiffs. That Stenerson such homes were for and that built homes; for such financial commitments * * * weather, Pocatello Agency and the said Smith-Marshall advertisements, by That reason of such agent general acted fiscal for as the plaintiffs homes became aware that certain prepared Homes, and handled Builtrite and known as were to be the Builtrite Homes purchase the execution contracts of of the they constructed. the so- That visited and sale thereof. by called model home the defend- erected ad- Agency That the Smith-Marshall ant Stenerson in the Northland Addition vertised for sale the homes built and and being by which was de- exhibited built in such addition. That the adver- Agency. fendant Smith-Marshall That Agen- tisements run Smith-Marshall home, at such the de- agents model n cy Sunday in the issues represented con- fendants home of Pocatello 18 and Journal June June prospective purchasers structed would 25, 1950, type and outlined character plan type be on the as the same and floor homes and locations thereof model home and would contain same and the manner in which said were homes equipment; type and kind of materials and being built the various and facilities that and the furnaces installed to be and, went with homes other among said adequate said were an homes size and things, advertised: type heat the homes which streets, curbs, “Paved gutters, placed. and they to be city water, electricity, telephones by reason That of such (available), route, bus sidewalks plaintiffs made to advertisements stoop, and curb to newspaper inspection and the and that all the homes home, plaintiffs the model visited the equipped with Agency Smith-Marshall offices in Poca-
“Youngstown kitchens, purchase they wa- electric tello and stated desired to heaters, fixtures, ter Crane exactly type bathroom kind home as to and con- (floors ceilings), insulation home, and con- struction like the model as shown ventional (asphalt specifications wood floors plans tile exhibited throughout), stripped they inspected weather time win- them the model at dows, required oil they automatic forced air furnaces That made the down home. (thermostatically controlled), payment Agency Weiser Smith-Marshall hardware, asphalt impregnated prepared necessary con- agency insula- which *5 supervised
tract and its execution for installed in the manner shown in the as purchase home; Home. model and sale of Builtrite that the furnace was in- adequate improperly in size and installed herein, plaintiffs relying “That the said required and heating but did not have ducts upon the and statements advertisements to the outer walls in the model as shown defendants, as made the said Smith- comparable home. That make the home Inc., Agency, Marshall S. and the said I. represented to the home which it was Stenerson, believing and that the said state- built, plaintiffs be compelled will be ments, writing, oral and were true and spend following sums: that the said homes would be constructed installing “For heating par- as advertised and as stated the said ties, kitchen, ducts in the bed- and that the same ample would be rooms and bathroom— and sufficient to withstand $182.00 the Poca- To weather, restore the insulation tello entered into a written con- place and purchase Stenerson, tract baffles around the with said I. S. ventilators— August, as of the day 3rd 30.00 at which floors, To correct time the said I. S. Stenerson and the said thereby defendant, making the same Smith-Marshall Agency, level— who 558.00 drafted pre- said contract and who To correct pared same, the window sit- and who caused the same to uation— 60.00 signed, knew, well or should have repaint known, To the house— 375.00 representations that the said as pave proportion To made and as stated in paper, were not true, street that should and that the said statements were paved, false, the sum of 264.00 misleading deceiving, and your and put recepta- in electric plaintiffs To said aver that the said defendants ground cle and wire— 14.25” intended to mislead plaintiffs the said herein reason such statements.” plaintiffs by And reason of said fraud (ff. 2190-2191.) misrepresentations and have been dam- aged sums, in the total of to-wit, said It is alleged further that the home said $1,483.25, plaintiffs for which pray sum plaintiffs constructed for was not con- judgment. structed in plans accordance with the and specifications plaintiffs defendant, exhibited to and International Oil Burner the said workmanship Company, appear was not as did not in the action shown in said model home judgment and that is not involved in the and nor in materials used were appeal. Defendant, not as Stenerson, used in the this model home and that defendant, the furnace was not Agency, Smith-Marshall filed consisting general answers denials. trolled and of sufficient size to adequately jury The cause was resulted such tried to heat home in Pocatello respondents complaint a verdict favor in weather. amended further .The alléges respondents $1,483.25. Judgment en- upon was relied sum tered accordingly. Motions for thereon acted to their *6 damage. pleaded for notwithstanding allege new The facts the verdict and thus appellants. requisite trial mo- were made existence by Such of all the of elements Ap- by complaint tions were a denied trial court. fraud. The amended states pellants judg- appealed good have each from the of cause action fraud dam in for ment ages. from the court de- and orders of the The trial court did not err in ad nying mitting support notwith- allega the motions for in evidence of the standing the trial. complaint. verdict and for new tions of the amended v. Paulsen Krumsick, 363; with assignments 341,
There are nine
of error
68 Idaho
195 P.2d
many
assignment.
It
each
Security
subdivisions of
Pocatello
35
Henry,
Trust Co. v.
impracticable
337;
opinion
321,
would be
in an
175,
206
Idaho
P.
27 A.L.R.
Hoff,
discuss in detail
of
354,
all
contentions
Nelson v.
70 Idaho
218 P.2d
appellants.
345;
Jukich,
While we have considered all
Idaho,
Weitzel v.
251 P.2d
questions raised,
542;
only
we
discuss
Cooper
Builders,
will
v. Wesco
226;
those
feel
Idaho,
we
merit mention.
253
Allen,
P.2d
Keane
69
v.
53,
411;
Idaho
202 P.2d
Ice
Merchants
Appellants
first
that
contend
Storage
Co.,
& Cold
Co. v. Globe Brewing
objection
overruling
court erred in
their
Cal.App.2d 618,
78
gations
The cases of
complaint bearing
Alexander v. United
amended
Cir.,
828,
Building
9
part
57 F.
Utah State
fraud on the
Smith-Marshall
Agency.
Perkins,
474,
& Loan Ass’n v.
Utah
We
with
must content ourselves
950,
support
that such
transcript
seem to
the view
saying that
discloses sub- P.
stantial,
applicable in
though
section would
this
conflicting, evi-
not be
at times
However,
damages
suit for
charges
fraud.
our
dence
fraud
for
to sustain the
against
recognized
court has
Agency. We
addition
the Smith-Marshall
statute,
proper case has
uniformly
this
the court in a
repeatedly
have held
power
require
par-
a bill of
the inherent
this
will not
the verdict of
court
disturb
Bennett Co. v. Twin
ticulars. Nelson
jury
it is
substantial
where
sustained
789,
5,
Co.,
93 P.
Falls L. etc.
14 Idaho
though conflicting
Hooton
evidence.
v.
Credit Men
City
and Intermountain Ass’n of
Burley,
“And are instructed that unless Idaho, the law in the law which each and you all of these items which case, governs plain- this is that find to have resulted from fraudulent *8 kind, by made tiffs in cases the defend- of this are not en- respect items, any ants in bargain to these titled to the benefit the of plaintiffs recover, made, nor, they are not entitled which have to in such except you cases, they as to those items are which entitled to credit for find fraudulently represented the property to increase in the of value
290 price im- the between contract and the value
which efforts or resulted from-no conformity of the home delivered provements their as in of home. requirements out-of-pocket the with specific, you find the he if “To damages. rule as the measure of to received, plaintiffs house which they rulings ad in the condition which received The court’s on the it, missibility damages as fol has been described to evidence to and which theory value lowed the you, market contained instruc had reasonable a more, 15, given appellants’ request $7,500 and we December tions at or respect appel 1950, plaintiffs find no error in this which then have suffered position urge. are damage, you should re- lants in a legal to no turn verdict for the defendants.” a appearing judg- It the verdict and by ment are substantial sustained evidence fol generally
In Idaho we have no and that reversible was commit- error out-of-pocket rule that the so-called lowed rulings by the in its in in- ted court or by fraud to person induced where a given, structions trial damages purchase his measure property court re- is affirmed. Costs awarded to the contract between is the difference spondents. price property value of and the actual Neeley, 39 v. time sale. Smith at the 105; 812, Johnson, Smith v. GIVENS, P. TAYLOR, 231 THOMAS and Davis, 320; 468, Frank v. 276 P. KEETON,
47 Idaho JJ., concur. Ross, 287; Gridley 678, P. v.
34 Idaho Chase, 989; P. M. 37 Idaho Jesse On Rehearing P.2d Leonard, 69 Idaho Inc. v. Stewart, 357, 207 600; Addy 69 Idaho PORTER, v. Chief Justice. supra. Jukich, Weitzel v.
P.2d Appellant Agency, Smith-Marshall. re- corporation, petition filed a duly supplying The reasonable cost petition hearing granted which was necessary parts put to repairing the or Stenerson, Appellant, did this court. I. S. represented it it was in condition home petition file and did not join proper evidence in was rehearing separate petition for within determining the jury considered court, of this time allowed Rule 47 purchase if between difference participate did not or at all. Stenerson home de value of the price do. ask leave so rehearing or Stewart, Addy respondents. livered respondents transcript rehearing, di At Also, contains supra. appellant, I. that the interests the- in value contended difference evidence as rect *9 appellant Smith- Stenerson, S. be- It and built. commit- secured the financial Inc., corporation, were purchases Marshall a ment for Agency, financing the separate homes that a rendition from distinct and the Life Insurance and New York judgment rehearing Company. a different prepared on It and had executed only original mortgages to the judgment the would a charge inure and made for serv- icing the same. Agency, advertising benefit of the It in Smith-Marshall did the the by newspapers Inc., and that I. is bound and was in charge S. Stenerson of the model Respondents home. It original judgment. the fur- could be contended with con- upon expiration ther contended that siderable merit appel- that acts such show n lants petition of a filing engaged joint time-allowed in for a venture in provided promotion rehearing question. for as Rule 47 of the subdivision in However, Appellate Supreme Court, Rules of do not necessary we deem it to respondents were so hold as is ample sup- entitled and are now there evidence to port representations remittitur a finding entitled to issuance of a of fraudulent n on appellant judgment part against I. Sten- affirming S. Smith-Marshall Agency, respond- With these contentions of Inc. erson. C.J.S., Appeal ents are accord. we The newspapers advertisements in the 2049; Error, 1452, p. and Caldwell v. § represented that the streets would be Caldwell, La.App., 55 So.2d Graham paved. The President of Smith-Marshall Clearman, Tex.Com.App., 16 S.W.2d Inc., Agency, testified that he obtained the 522. information for such advertisements from the submission list of materials submitted gist The of the contentions of by Stenerson to the Housing Federal Ad-
appellant Agency, up Smith-Marshall ministration. Such submission list called is rehearing appellant that such was a for oiled streets. broker in sale mere of the house in responsible is such as for volved advertisements, The among things, other representations scope made within represented homes sup- would be n authority good upon its faith reliance plied with automatic oil forced-air fur- Stenerson, -the of I. S. its naces (thermostatically controlled); appellant principal, to such as brok there testimony agents mad.e is of such ' appel The evidence shows that appellant such represented er. furnaces beyond its rights adequate lant went and duties far type be of size and would to procured a It broker. the land heat for the such homes. is properly There testi- president subdivision. Its register went with Sten that the model home mony had a Seattle, Washington, erson to against to decide each of wall the bedrooms room, upon heating plants the homes for to in the living which lead necessarily prospective that such 226. It purchasers believe 253 P.2d ducts; proof pleaded and follows that registers were be served single representation suf- bath- material false registers also had ducts damages. a thermostat ficient sustain and kitchen. It also had room evi- living on the wall in the room. original opinion ren- We adhere to the bed- registers dence shows that the *10 in this case. The dered dummies rooms and room living respond- is Costs to trial court affirmed. ducts apparently registers ents. kitch- were taken out of the bathroom respondents delivered en. house TAYLOR, GIVENS, THOMAS and ducts to any registers or did not have KEETON, JJ., concur. two only outlets were heat room and direct- front room attached
registers
ly thermo- to the furnace. There was prevent the furnace to
static control on the
thermo-
overheating
no
furnace
but
ing representation every material
each and repre
made, false single and a material pleaded, sufficient
sentation, if complaint. Paulsen v. sustain the 341, 363;
Krumsick, 195 P.2d 68 Idaho Stelle, 43 Idaho 249 P.
MacLeod v. Storage & Cold Co. v. Ice
Merchants Co., Brewing Cal.App.2d
Globe Builders, 503; Cooper Wesco
P.2d