76 P. 762 | Idaho | 1904
This is an appeal from the final judgment of the district court, fourth judicial district, Blaine county. Plaintiff’s action was in ejectment to recover lot 1,
Defendants further answering say plaintiff and his predecessors in interest never acquired any claim upon or interest in or to said premises by virtue of the judgment or execution,
A jury was impaneled to try the ease, and the verdict was for the defendants. It is shown that a question was submitted to the jury, to wit:
“Gentlemen of the jury, at the request of the plaintiff, the court instructs you to answer the following question: What is the value of the rents, issues and profits of the property described in the complaint from April 8, 1899, to November 30, 1902? Answer: $30 per month.
“GEORGE H. CHOATE, Foreman.”
Hpon this verdict a judgment was entered for the defendants for their costs.
The facts in this case are so closely interwoven with a former action in the district court of Blaine, then Alturas county, that it seems necessary to relate some of them here.
Alexander Willman sold his mercantile business in the town of Hailey to S. M. Friedman; a part of the transaction was the proposed sale of the premises in controversy. Willman placed a deed in escrow with the First National Bank of Hailey for Friedman, to be surrendered to him upon the payment of five promissory notes aggregating about $4,500. The notes were given as evidencing the purchasing price of the property agreed to be paid as the purchase price of the property as shown in a-contract accompanying the same. Before the maturity of the last two notes Willman commenced his action in the district court of that county, and by an affidavit that he had no security for the payment of the debt, procured an attachment and levied upon the goods and chattels of Friedman. This action
These facts are related to show the reason for the alleged' contract between S. M. Friedman and Henry M. Cohn. Cohn, testifies that after the attachment proceeding he went to Hailey and in a conversation with Friedman, Friedman informed him he was a ruined man and that the only way Cohn could save himself was to furnish money to carry on the litigation on his cross-complaint' for damages, and he would assign the cause of action to him, Cohn. This was agreed upon and thereafter Cohn assumed the payment of attorneys’ fees and other costs- and expenses and followed the case at his own expense to a final determination. Cohn testified that Friedman was at that time indebted to him $5,000 or more.
Counsel for appellant insists that when Willman resorted to the attachment proceeding to recover the amount due him from Friedman he waived his right under his escrow agreement, and the title to the real estate in controversy vested in Friedman. We cannot give our assent to this proposition. There was never a time when Friedman could procure the deed without paying the obligation held by Willman. When the attachment was levied upon the property of Friedman it left him powerless to meet this obligation; neither Mr. Willman nor any of the creditors of Friedman treated the property in controversy as the property of Friedman, as no attachments were levied upon it. The escrow remained in the bank until turned over to Mr. Burt on the order of Mr. Willman on the thirteenth day of December, 1895. The letter and receipt are as follows:
“San Francisco, Dec. 5th, 1895.
“First National Bank of Hailey.
“Gentlemen: I hereby inform you of the fact that Mr. J. J. Burt, the bearer of this, is fully authorized by me to act for me and in my stead in all matters existing between you and me, especially in all matters pertaining to the transaction between S. M. Friedman and myself, and he is authorized to take down and deliver to Mr. Friedman, in ease he sees fit to do so, the deed now held by you in escrow.
“Yours truly,
“ALEXANDER WILLMAN.”
“Dec. 13, 1895.
“I have this day received from the First National Bank of Hailey, deeds from A. Willman to S. M. Friedman.
“J. J. BHRT.”
Counsel for appellant assigns as error the ruling of the court on the admission of the evidence of Henry M. Cohn relative to his conversation with S. M. Friedman at the time of the assignment of his right to recovery on his cross-complaint. We see no error in this ruling. The thing assigned being of a doubtful character, based entirely upon what view a jury and the court might take of Friedman’s demand against Willman, we can see no reason why his good faith in prosecuting this claim should not be shown.
It is urged that it was error to submit this case to a jury; the record shows that the case was tried in the lower court as a law case. The court permitted the plaintiff to submit one question to the jury, and that related to the value of the rents, issues and profits of the property for a given time; the general finding of the jury was that the plaintiff could not recover.
We find no error in any of the other rulings of the court as
The judgment is affirmed, with costs to respondent.
This case has a long and intricate history, as may be gathered from the opinion of Mr. Justice Stockslager. The original case, out of which all subsequent litigations grew, was that of Willman v. Friedman, 4 Idaho, 209, 95 Am. St. Rep. 59, 38 Pac. 937.
It seems to me that if the doctrine announced in that case is correct and to be accepted as the law of this state, to the effect that upon a suit to recover the purchase price of property a counterclaim or cross-complaint may be set up for damages caused on account of a wrongful attachment issued and levied to secure such purchase price, then the judgment in this ease should be reversed. If the conclusion reached in the principal case be correct, it would logically follow that upon commencement of the action and issuance and levy of the attachment the vendor waived his right to demand or recall the escrow deed, and that, so far as he was concerned, the title at once vested in the vendee. There must also necessarily follow from the case the further conclusion that immediately upon the wrongful issuance and levy of the attachment the original debt sued upon became satisfied and liquidated to whatever extent such damages might be ascertained and established.
The lien of appellant’s judgment would have, therefore, attached to the property and followed it until satisfied.
I make these observations because the opinion here seems to depart from the principle of the original ease; but since it does not refer to or discuss that case, I refrain from further expression in the matter.