*1 with instructions Judgment is reversed cause, to reinstate trial court to issues, amount of and the
find on all the damages sustained, any, if
damages shown, enter judgment against
are
spondents in conformance views expressed. may
herein Further evidence
he received in the discretion of the court. appellants.
Costs to
TAYLOR, J., and C. PORTER and
SMITH, JJ., concur.
ANDERSON, J., hearing, sat in participate his death did
due
decision. P.2d 314 RINGELE,
Dorothy Plaintiff- Rorrison Appellant, Terteling, co- N. L. W. TERTELING
J. doing firm under the partners business Terteling style of J. A. name Defendants-Respondents. Sons,
No. 8259.
Supreme of Idaho. Court Feb. 1956. Rehearing 1956. Dec.
On *2 Furey, Jr.,
Sherman F. U. S. Dist. Atty., Boise, Roger Marquis, P. Elliott, Hawley, Boise, G. H. Washington, E. James C., curias, D. amici at rehearing.
PORTER, Justice.
By her complaint, second amended ap- pellant alleges substantially as follows: That times mentioned therein up to Weiser, Donart, respond- & Donart 6, 1943, May appellant was the owner of ents. possession of of Jerome’s Home, to Mountain Idaho. That
Addition 1, 1942, the dates of November between 6, 1943, respondents May willfully upon said land trespassed and took and 110,000 therefrom removed rock, gravel appellant’s and sand which premises. then in said were rock, gravel and said sand That were appellant’s by respondents materials severed from extracted said land by respondents consent to the said land were taken and sold and ben- use Department War efit of the United States Government of the United $227,700 building for the sum of said constructing airport. paid respondents by said sum said Department purchase War and for the For defense, a second affirmative re- price respond- property; spondents allege that the Government of ents thereby became indebted to the United States of filed an ac- America brings said sum. That action May 6, tion to condemn said land on assumpsit upon said contractual indebt- subsequently acquired title thereto in edness hereby waives all of ac- right condemnation wherein Appel- tion for any tort set forth. above therefor was fixed at prays $227,700 lant with $125.
interest thereon. Appellant respondents’ demurred to first By way of second amended answer to and second affirmative defenses but such complaint, second re- amended demurrer was overruled. At the trial of allegations spondents deny generally stipulated the cause most of the were facts complaint. For amended of said second including the execution of the contract answer, re- separate defense a first between Department re- War harmony that in spondents allege spondents, in evidence Ex- as Plaintiff’s 1941”, 50 U.S. Act of “First Powers War hibit 1. The trial findings court entered seq., Execu- C.A.Appendix, et § fact and conclusions of law favorable 9001, U.S.C.A.Appendix, No. tive Order note, entered authorizing directing §611 Depart- respondents. airports by the thereon for judg- building From such ment, respondents into a written entered prosecutes appeal. Department by the with the War contract By assignments error, appellant which, things, other among terms particularly challenges the affirmative de- and construct spondents agreed to build respondents. fenses of Irrespective of point approximately airport at the merits of such defenses; affirmative Home, Mountain Idaho. south miles *4 the fundamental weakness of rock, gravel of said removal and the That case lies in the proof failure of the to sus- pursuance in of and under the sand theory upon tain the which seeks and that at contract all of said times terms to recover. acting agents, were as the the employees of the and Govern- The contract between the Depart- servants States. And that the United all ment and voluminous, ment
435 rock, sand the concrete for canton- respect aggregate, to the screenings structures, ment in ac- issue, contains, Specification it under SC-7, specifications cordance with these special conditions No. 698-398 as otherwise provisions: the material following directed. to be work to be done.—The
“Work “2-02. General. —The Government specifications con- done these under will furnish without cost to the con- necessary- all furnishing tractor, sists of the pit in the sites follow- materials, ex- equipment, labor and : locations ing to be cept [*] [*] such »* furnished materials by the as herein Government, specified lying south line “All of railroad lots and west right-of-way, * * * Oregon 13 the above * * Short * materials “Government furnished south, Township range section 3 materials equipment. east, Boise Meridian.” and/or —The ment tor contract. officer, are struction contractor, [******] “(2) Gravel are as follows not to be equipment be will designated under furnish procured S.W.|4> Sec. pit site.—The entering this without cost by the each pit contract by the contrac- into site, 23, T. 3 part of contracting the con- to the' which this S., loading.” ment with the to be —The ber of gates to duced and “2-11. paid quantity cubic be railroad cars at specifications. Measurement for will paid stockpiled yards determined be will be the num- aggregates the various in accordance the number measure- payment. point quantity aggre- pro- acres, approximately Lot contains the E.B.M., provided R. 6 part approximately is a specifica- of these provisions technical pit designated as a under acres tions.” terms of 1. On or under further contains contract ¿bout November, 1942, the first Stockpiling II, Production “Section Engineers, Corps Army provisions: following Aggregate”, knowledge appellant, or consent of explored such to be Scope. work went “2-01. —The therein suitable for construc- includes found section done equip- purposes at the Mouutain Home Air- materials and furnishing of They and there then staked neces- out all labor base. performing purposes stockpile ground furnish, desig- deliver and sary *5 nated as one of the lots from by received the defend- gravel should be taken for such construc- ants from the Government of purposes. United States the terms of the contract hereinbefore mentioned was 29, 1942, On or about December paid to the servicing, defendants for spondents, pursuant to the terms of the processing gravel said extracting contract, upon Exhibit entered such Lot gravel pit and placing the severed, removed, processed 13 and position same in part aas of the con- transported 13, 110,000 from such Lot struction of said air base.” gravel and delivered the same to the United States appears It thus that there was no sale Airbase, approxi- at the Mountain Home any gravel by to the Fed- mately away provided 14 miles as in said eral Government and that no money was contract. Neither the Government of the had and by respondents received respondents procured United States nor appellant benefit of by any virtue of any title to Lot 13 or the thereon alleged Irrespective sale. of the legal is- gravel. The prior of such to the removal appellant sue the right as to to recover respond- that appellant evidence shows money had received event paid by Government of the ents were sale, preclude of a the facts herein a re- with the in connection United States covery appellant upon by theory in an from Lot 13 amount removed under her evidence. $227,700 prayed for in in excess of the Unless one of the affirmative defenses complaint. the second amended appellant good, would be entitled complaint, her second amended
By
recover in this case and her measure of
elected to
the tort and
waived
damages would be either the value of the
assumpsit
money
had and re
sue
place
gravel in
or the value of the
by respondents
the use and ben
ceived
respondents dependent
in the hands of
$227,700
al
efit of
in the sum of
upon the circumstances connected with the
paid by
legedly
the Government
to re original trespass. However, appellant nei-
purchase price
spondents
as
pleaded
proved
ther
nor
or offered to
supports
gravel.
Finding
The evidence
of prove
value of the
or in
the trial
reading
No. 12 of
court
Fact
the hands of
after
its re-
follows:
Therefore,
moval.
the trial court was part
position upon
“That no
of said
the evidence
so re-
before it
any judgment
from said
to enter
moved
Lot Thirteen
Grogan-Cochran
the defendants to the
Martin
Co.,
sold
Lumber
States;
Tex.Civ.App.,
ment of the
that
petition SMITH, JJ., concur. now been has granted was rehearing permitted to held. ANDERSON, file a brief sat at the J., and to rehearing, Curiae Amicus
appear rehearing. final decision argument before cause. died present oral