61 P. 1029 | Idaho | 1900
Lead Opinion
This is an appeal from an order of the district court granting a new trial. The canse of action arose upon a contract for the sale and delivery by the plaintiff to the defendants of a lot of sheep consisting of three thousand seven hundred yearling ewes and one hundred and fifty buck lambs. The contract expressed the time and place of delivery, and amount to be paid, and the terms of payment, and also that said sheep were to be “free from scab or disease.” It was also provided in the contract as follows: “3. In the event that the parties of the second part request and notice is given to the parties of the first part on or before March 15, 1897, the parties of the first part agree to buy back said ewes and rams at the purchase price mentioned above, and receive the same at Beaver Canyon, Idaho, April 15, 1897, -and further agree to pay for three per cent in excess of the number counted out at delivery (this three per cent to cover v/inter loss liable to be sustained by said parties); also agree to pay ten per cent per annum on the amount advanced, viz., $2,000 from December 1, 1896, to April 15, 1897; also further agree to waive the payment of interest on balance of pay, viz., $5,040, due from the parties of the second part April 15, 1897, and drawing ten per cent interest per annum from November 1st until paid.” The defendants having failed to meet the delayed payments as provided in the contract, plaintiff brought this suit to recover same. It is not denied by plaintiff that, at the time of the delivery of the sheep by the plaintiff to the defendants under the contract, a few of said sheep were afflicted with scab. This being so, it was optional with the defendants either to avail themselves of the option provided in the contract, and return the sheep as therein provided, or to retain the property, and bring their -action for breach of contract. They elected to take the latter
The only question involved in this case would seem to be the amount of damages defendants are entitled to by reason of the fact that some of the sheep sold and delivered to them by the plaintiff were at the time of such delivery afflicted with scab. For any loss or damage, the proximate cause of which was the existence of the scab among the sheep sold and delivered by plaintiff to defendants under the contract, the defendants are entitled to recover. It appears by the record that immediately upon the discovery by the defendants that said sheep were afflicted with scab they advised the plaintiff, through its officers, of the fact, and that, acting under the advice of such officers, defendants took every available means to prevent the spread of the disease among the flock, and in so doing it appears from the evidence on the part of the defendants that they incurred an actual expense of $296.05. In addition to said last-mentioned amount, defendants claim that they lost six hundred and thirteen head of sheep, of the value of $2.50 per head. But it is by no means clear from the evidence that this loss was the result of, or justly attributable to, the existence of the scab among the sheep purchased by defendants from plaintiff. Mr. C. H. Woodmansee, one of the defendants, and the person principally in charge of the sheep after their delivery by the plaintiff to defendants, testifies: "We had six hundred and thirteen head of sheep die from the date of delivery up to shearing time in June.” Again, the same witness testifies upon cross-examination: "I personally counted the sheep from the shearing pen. I do not know that the whole number six hundred and thirteen died. We were that many short is what I meant. The sheep included' the Singleton sheep, and the Davis sheep, as well as the sheep we bought of the plaintiff’s company. In the winter and spring I had purchased twelve hundred and seventy-six head of sheep from Mr. Singleton and Mr. Davis of Wilford. I received the Singleton sheep February 9th, and the Davis sheep March 29th. The ewes that I bought of Singleton were passed in with the Wood sheep'. The rams were kept separate. Six hundred and thirteen head of the whole stock was
The question brought here for review is the action of the-district court in granting a new trial. This is made an ap-pealable order by statute. In reviewing the action of the district court we are not, as would seem to be, as insisted by counsel for respondents confined to the question of whether there has been an abuse of discretion by the trial court in granting a new trial, but are we satisfied from the record before us that an injustice has been done; or, in other words,, does “the promotion of justice” demand that a new trial should be granted? The case seems to have been fully and' carefully presented to the jury upon issues fairly made. It is urged that but nine of the jury signed the verdict. If' that is to be made a ground for a new trial, the statute authorizing such a verdict is a mere nullity. Trials in the-district court involve great expense, not only to the litigants,, but to the public, and they should not be granted unless the-“promotion of justice” demands it; and we are unable to say,, from the record presented, that such a demand is warranted in this case. We think this is a case in which the maxim,. “De minimis non curat lex" may be properly invoked. The order of the district court granting a new trial is reversed.. Costs to appellant.
Dissenting Opinion
Dissenting. — It is admitted that the sheep-sold by appellant to respondents were afflicted with scab, which afterward broke out among them. The undisputed evidence is to the effect that respondents, in their efforts to eradicate said disease, incurred necessary expenses to the extent of.
Dissenting Opinion
For the reasons stated in the opinion heretofore filed by me in this case, and wherein I dissented from the views of my associates, I think that the petition of the respondents for a rehearing should be granted.
Rehearing
ON REHEARING.
After a careful consideration of the pe-
tition for a rehearing in this case, we find no ground on which to base a rehearing. A rehearing is therefore denied.