290 P. 395 | Idaho | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *645 We have here an appeal from a judgment upon three causes of action entered October 13, *646 1928; an appeal from an order denying a new trial, dated November 26, 1928; and an appeal from a decree and judgment on a fourth cause of action entered March 23, 1929.
A motion has been made to dismiss the appeals from the judgment of October 13th, and the order of November 26th, on the ground that an application for an order of the district judge directing the reporter to prepare reporter's transcript was not made within five days after perfecting the appeals; also that no transcript of the record showing the date of the filing of the notice and undertaking on appeal was served on respondent and filed within sixty days after the appeals were perfected as required by rules 16, 23 and 25 of this court, and C. S., secs. 6886 and 7166. The motion is pursuant to rules 16 and 26 of this court. The application for an order for reporter's transcript for these appeals was not made until March 25th, 1929. No extension of time was asked or procured. Upon this motion being made, appellant asks that the delay be excused on the ground that appellant did not earlier procure the order because of inability to procure the money with which to pay for such transcript.
This does not excuse the failure to make the application. It is thought the rule cannot affect its purpose of avoiding delays if it may be brushed aside when convenient. Under the authority of Walton v. Clark,
However, for a better understanding of the questions arising on the appeal from the judgment entered March 23d, we have examined the entire record and find no error. In this behalf it may be said: From the evidence offered by the plaintiff at the trial it appears the difficulty and dispute which was litigated in the first and main cause *647 of action grew out of defective seed potatoes sold by respondent and planted by appellant.
The record discloses that the respondent was the owner of the land on which appellant as tenant planted the seed potatoes in question. The rental was one-half the crop. Under the terms of the lease seed planted was subject to the landlord's approval. The landlord, who is respondent, furnished half and recommended and sold to appellant the other half of the seed potatoes in question. A poor crop resulted as a consequence of planting this seed.
The substantive law applicable is the law of warranty. The evidence discloses that appellant was an experienced potato grower, having had seventeen years' experience; that he knew at sight that the Rurals involved were not true to name as represented. He knew that part of the seed had spoiled, and when he cut into them preparatory to planting he knew most of the balance were diseased. That he was in nowise misled at the time of planting by any representation theretofore made by respondent is an outstanding fact established by appellant's direct testimony. Under these facts he cannot recover crop damage resulting from planting the diseased seed in question.
True, where one desiring seed makes known to a dealer his needs for planting, and a selection of seed is made upon recommendation by the seller, there arises an implied warranty that the seed is suitable for the purposes intended. (Wapato Fruit Cold Storage Co. v. Denham,
Appellant cites Grisinger v. Hubbard,
In the Hubbard case, as to measure of damages, the court expressly followed Shearer v. Park Nursery Co.,
In the first and main cause of action appellant offered no proof of damages excepting failure of crop, resulting from planting defective seed, known to him at the time of planting to be defective. Giving the evidence the most favorable construction possible, it was not in point of law sufficient to sustain a judgment. We think the court properly granted the nonsuit.
The assignments are mainly as to procedure. We have examined them carefully, and the authorities cited as sustaining them. They disclose no error.
The assignment relied upon in the appeal from the judgment entered on the fourth cause of action is that the court erred in not granting appellant's demand for submission of the issues of fact to a jury, and that such denial was in violation of a constitutional right. It is claimed that *649
art. 5, sec. 1, of our Constitution was adopted from North Carolina, with a construction upon it guaranteeing right of jury trial of a fact at issue in equitable as well as law actions. With due regard for the force of this argument, this court has notwithstanding it when heretofore presented, abided by the decision to the contrary in Christensen v.Hollingsworth,
The findings of the trial court are sustained by the evidence. Finding no error, the judgment of March 23, 1929, is affirmed, with costs to respondent.
Givens, C.J., and Budge, Lee and Varian, JJ., concur.