67 P. 1123 | Idaho | 1902
Lead Opinion
— On the first day of October, the appellant purchased from respondent fifteen head of steers and three cows, and then paid five dollars down, and a day or two afterward paid the balance of the purchase price. The complaint alleges that the respondent failed to deliver one of said steers, and only delivered fourteen steers and the three cows. The answer of respondent denies that respondent only delivered fourteen steers, and alleges that respondent delivered the fifteen steers. This action was commenced in the probate court in and for Bear Lake county, to recover thirty-five dollars, the contract price paid by the appellant to respondent for the steer which was not delivered. The probate court rendered judgment in favor of the respondent, and appellant appealed to the district court, where the case was tried de novo by the court, without a jury, and the district court rendered judgment in favor of the respondent, from which this appeal is brought.
There was no motion for a new trial in the court below, but all of the evidence is contained in the appellant’s bill of exceptions, and it is alleged in said bill of exceptions that said evidence is insufficient to support the judgment, and the specification of insufficiency of the evidence is sufficiently set forth therein. The evidence is brief, and is, in substance, as follows: Appellant went to the ranch of respondent on the first day of October, 1899, to buy some cattle of respondent. Appellant and respondent drove up to, and into, a field where the cattle were grazing, and looked at them, and then returned to respondent’s house. Appellant then asked respondent the price of said cattle, and respondent told appellant that he would take thirty-five dollars per head for the fifteen steers, and twenty-eight dollars per head for the three cows. Appel
There are no findings of fact in the record, and they were presumably waived by both parties. The evidence does not support the judgment, wherefore the judgment is reversed, and
Rehearing
ON REHEARING.
— The respondent has filed a petition for a rehearing, in which he insists that the question of bailment, under the statute, was not raised by the pleadings, and that under the pleadings the respondent was precluded from showing diligence in the care of the cattle in controversy. We cannot agree with this contention. The complaint in this case is very brief, yet it alleges, in concise terms, the sale of the cattle by respondent to appellant, and the failure of the respondent to deliver all of the cattle to the appellant. These facts make a case under the statute cited. The answer sets up no defense to the complaint, except it alleges delivery. If a defense existed, other than that of delivery, the respondent should have pleaded the same in his answer. The only issue was as to the delivery of the steer in controversy by respondent to appellant. On that issue the evidence was in favor of appellant, and findings and judgment should have been in his favor.
We see no good reason for granting a rehearing, and the same is denied.