69 P. 276 | Idaho | 1902
Lead Opinion
— This is an appeal from a judgment of the district court of Nez Perces county; also from an order overruling a motion for a new trial. The complaint alleges that on the twentieth day of May, 1897, plaintiff, defendants, and one Gust Erickson located a certain mining claim in the name of D. W. Martin, Gust Erickson, Matt Dowd, and John Gaffney; that thereafter, to wit, in the month of October, 1900, plaintiff borrowed from defendant Matt Dowd $100, and agreed to, and did, convey one-fourth interest in said mining claim to said Matt Dowd and John Gaffney for the purpose of securing said loan of $100, and for the further purpose that they, the said Dowd and Gaffney, might negotiate a sale of said mining claim, and on the sale thereof retain said $100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale; that on the fifth day of March, 1900, said Dowd and Gaffney negotiated a sale of said mining claim with one George Runkle, and that said Dowd and Gaffney, together with Gust Erickson, for the sum of $3,000, of which $500 was paid on the said fifth day of March, 1900', and the balance, of $2,500, was paid in the month of April, 1900, sold, assigned, transferred, set over, and deeded to the said Runkle the said mining claim, together with all right, title, interest, and estate of each and every of said locators and of plaintiff in and to the same; that
The first assignment of error is as follows: “The court erred in ordering a jury to be sworn and impaneled, over defendants’ objection, to try the above cause, and in having the same tried by a jury.” In support of this assignment of error our attention is called to Cox v. Northwestern Stage Co., 1 Idaho,
The second assignment follows: “The court erred in ruling, over defendants’ objection, that this case is a proper case for a jury, and that it should be tried by a jury.” The same ruling applies to this assignment, and we do not think it was error to submit the issues to a jury.
Assignment' 3: “The court erred in overruling defendants’ objection to the following question asked witness Martin: ‘You heard me read the complaint wherein you allege you made a deed in October, 1899? State what passed between you and the defendants, Matt Dowd and John Gaffney, if anything, when you made the deed.’ ” Counsel for appellants objected, to wit: “We desire to object to that question on the ground that it is incompetent, immaterial, and irrelevant; that the plaintiff is attempting to vary the terms of a written contract or agreement by parol evidence, which in this character of a case is inadmissible. On the further ground that the plaintiff, by failing to comply with section 4201 of the Revised Statutes of Idaho, which requires the filing of an affidavit where a written instrument is set up- — by failing to do this he has admitted the execution of the deed, and that by that admission he not only admitted the execution and correctness of it, but admits the facts and things therein stated as true.” We find no error in overruling the objection to this question. It only called for a statement of what took place between the parties at the time of the execution and delivery of the deed.
The fourth assignment of error, to wit: “The court erred in overruling and denying defendants’ motion for nonsuit and dis
- This brings us to the only remaining question in the case— the sufficiency of the evidence to support the verdict and judgment of the court. Plaintiff testified that he borrowed $100 from defendant Dowd, and executed his deed to Dowd and Gaffney as security for the payment of such loan, and to enable them to dispose of the entire property in case they had an opportunity to do so. He insists that he did not at that time or at any time sell the property to defendants, but that the contract and agreement was that he was to have his one-fourth of the purchase price of the mine in case it was sold. He testifies he never read the consideration expressed in the deed, and did not know what amount was expressed therein as a consideration. The defendants each testify positively that the sale was an absolute, bona fide sale of plaintiff’s one-fourth interest in the mining claim to them, and that the $500 expressed in the deed was the actual consideration for such interest; that they deposited the $400 in a bank at Lewiston for plaintiff, which, with the first payment of $100, was in full payment for said property. H. K. Barnett, the' notary public before whom the deed was acknowledged, testified on behalf of defendants that: “I remember these parties being in my office and having this deed acknowledged. I read to Mr. Martin the description of the land and the amount of the consideration, and asked him, in the usual way, if he knew the contents of the instrument. Upon my asking him this question, he said, ‘Yes,’ of course, like any other party.” Charles Dowd, a brother of Matt, the defendant, testified that he remembered a convei*sation on the Dowd farm in the month of October, 1899, in which himself, Matt Dowd, W. A. Fabrick, and plaintiff, Martin, were present. The lines of a mining claim were being discussed. Matt Dowd made the remark to Martin, “Our lines run so and so (designating the lines), do they not?” Mr.
There being a substantial conflict in the evidence, the veT-dict must be sustained. Costs are awarded to respondent.
Dissenting Opinion
Dissenting. — I agree with my associates that the trial court did not err in calling a jury to try this action, which was brought to recover upon an alleged promise to pay a certain sum of money. The allegation in the complaint to the effect that the deed from the plaintiff to the defendants was intended to secure a loan was matter of inducement, explaining the true nature of the plaintiff’s claim. I also agree that when there is a substantial conflict in the evidence the verdict of the jury should not be disturbed. But I am unable to agree to the conclusion in this case, for the reason that, in my opinion, the evidence was not conflicting to the extent that will bring this case within the rule, or, in other words, there is no real, substantial conflict in the evidence. No witness testified to any of the facts necessary to be established on behalf of the plaintiff, except the plaintiff; and the plaintiff is thoroughly impeached, not only by the testimony of the