258 P. 370 | Idaho | 1927
Lead Opinion
This cause is here on appeal for the second time, and reported at
The conclusions of this court upon the first appeal established the law of the case for the guidance of the trial court and should have been followed. (Hall v. Blackman,
Upon the going down of the original opinion a further hearing was had, the parties stipulating that the Lemhi Valley Bank had become insolvent and was taken in charge by the commissioner of finance and a liquidating agent, and that said commissioner of finance and liquidating agent were necessary parties to the action. It was also stipulated that the entire record of the cause as furnished to this court on the first appeal, as well as all facts contained in the stipulations of the parties, be considered by the court in reaching a decision, no further oral evidence being taken. While it may have been proper, therefore, in view of the parties' stipulation, to make the commissioner of finance and the liquidating agent of the bank parties defendant, for the purpose of proceeding against the bank to satisfy any judgment against it, there are allegations in the supplemental complaint totally foreign to the questions involved in the original cause. No objection to the filing of the supplemental complaint was made in the trial court, but it is urged here that said supplemental complaint does not state facts sufficient to constitute a cause of action. We are of the opinion that the supplemental complaint is subject to this objection, which being true the supplemental complaint and answer and affirmative defense thereto are not here for consideration; and it follows that judgment entered on the supplemental complaint must fail.
Appellants complain of the action of the court in fixing the rental value of the real and personal property at $1,200, for the reason that there is no evidence to support a finding in such amount, and that it is contrary to the uncontradicted evidence. The only evidence appearing in the record as to the rental value of the property is that such value was $2,800 or $2,000, it being testified by one Allhands, a former official of the Lemhi Valley Bank, that a reasonable rental value was $2,000, and appellant Jarvis testifying that it was $2,800. The evidence would therefore be wholly insufficient to support the conclusion of the trial court that such value was only $1,200. The smallest amount fixed as a reasonable rental value, under the evidence, *408 was $2,000, and judgment should have been entered for appellants Jarvis in that amount, plus $1,040, the value of personal property not returned by Richards, less interest on the $3,000 deposit.
The trial court found that interest on the $3,000 deposited in escrow in the Lemhi Valley Bank by Richards was $210, which finding is supported by the evidence, and said amount should be deducted from the $2,000 determined to be the reasonable value of the use and occupation of the real and personal property.
The trial court was without authority under the directions to it in the original opinion to change or alter its findings or judgment touching the matter of the value of the personal property not returned by Richards, or to deduct from the rental value any other amount or amounts than interest on the $3,000, such matters having been definitely and finally determined in the original opinion.
Judgment should, therefore, be entered in favor of appellants Jarvis and against Richards in the sum of $2,830.
The parties stipulated that at the time of the deposit of the $3,000 in the bank by Richards, Jarvis was indebted to the bank in an amount largely in excess of that sum, and that the said $3,000 was applied by the bank toward the payment of his indebtedness. In the present judgment before us, the court directed that judgment in favor of Jarvis and against Richards be used by the bank to the full extent and face value thereof as an offset against or in liquidating judgment in favor of Richards against the bank. In view of the foregoing stipulation of the parties we are not disposed to disturb such part of the judgment. (Mecham v. McKay,
Except as herein modified, the judgment is affirmed, and the court is directed to amend its findings and judgment in accordance with the views herein expressed. No costs allowed either of the parties on this appeal.
Wm. E. Lee, C.J., and Givens and T. Bailey Lee, JJ., concur.
Concurrence Opinion
This cause was remanded, the judgment to be amended so as to award a judgment in favor of Jarvis against Richards "for the sum of $1,040, plus such amount as is allowed the sellers for the reasonable value of the use and occupation of the real and personal property, and less the interest . . . ." On the second hearing, the court fixed the rental value at $1,200. Assuming it should have been $2,000, yet Jarvis, in his cross-complaint, admitted the receipt of 40 ewe lambs and 31 wethers, which he valued at $6 and $5, respectively, a total of $395, which he specifically admitted was a credit upon any sum claimed and found as the reasonable rental value. The court credited Richards with $355, "the value of 71 lambs worth $5 per head," turned over to Jarvis, being products and issue of the farm "not taken into consideration by me in fixing the value of the personal property not turned back at the time of rescission of the contract." The former finding was explicit that the $1,040 was the value of specific property received and not returned, and hence, as disclosed by the later finding, the $355, value of the increase, was not considered in fixing the $1,040 damage.
I concur in the decision herein, except that the amount of Jarvis' judgment should be reduced by $355.
Petition for rehearing denied. *410