STOCKSLAGER, J.
— This is an appeal from a judgment of the district court of Nez Perces county; also from an order overruling a motion for a new trial. The complaint alleges that on the twentieth day of May, 1897, plaintiff, defendants, and one Gust Erickson located a certain mining claim in the name of D. W. Martin, Gust Erickson, Matt Dowd, and John Gaffney; that thereafter, to wit, in the month of October, 1900, plaintiff borrowed from defendant Matt Dowd $100, and agreed to, and did, convey one-fourth interest in said mining claim to said Matt Dowd and John Gaffney for the purpose of securing said loan of $100, and for the further purpose that they, the said Dowd and Gaffney, might negotiate a sale of said mining claim, and on the sale thereof retain said $100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale; that on the fifth day of March, 1900, said Dowd and Gaffney negotiated a sale of said mining claim with one George Runkle, and that said Dowd and Gaffney, together with Gust Erickson, for the sum of $3,000, of which $500 was paid on the said fifth day of March, 1900', and the balance, of $2,500, was paid in the month of April, 1900, sold, assigned, transferred, set over, and deeded to the said Runkle the said mining claim, together with all right, title, interest, and estate of each and every of said locators and of plaintiff in and to the same; that [456] said Dowd and Gaffney have paid to said Erickson his one-fourth, to wit, $750; that they have paid plaintiff about March 5, 1900, $500, and have neglected and refused to pay plaintiff the balance due him, to wit, $250, though often requested so to do. The answer admits the location of the mining claim by the parties as alleged in the complaint, and all the allegations of the complaint except such as are denied, to wit: Deny that they paid to the plaintiff on or about the fifth day of March, 1900, $500, or any other sum greater than the sum of $400. Deny that they have neglected or refused to pay to plaintiff the balance due him, to wit, $250, or any other sum, or that any balance is due him. Affirmatively allege: That on the ninth day of October, 1899, plaintiff prepared and offered for sale to defendants his undivided one-fourth interest in and to said mining claim for the sum of $500, payments to be made as follows: $100 cash at the time of transfer of property, and balance, $400, to be paid whenever demanded by plaintiff. To this proposition defendants acceded, whereupon plaintiff made, executed, and delivered to them his deed to his undivided interest in and to the said property, defendants at said time paying to him the sum of $100, as agreed, as a part of the purchase price of said property. That thereafter, to wit, on or about the sixth day of March, defendants placed to the credit of plaintiff, in the First National Bank of Lewiston, the further sum of $400, as balance due on said purchase price, which said amount plaintiff received and accepted as the total amount due him for said interest as aforesaid. That ever since said time, and until the time of the transfer of the whole of said mining claim, defendants were the owners in fee of said interest formerly owned by plaintiff. Dpon these issues a jury was impaneled, and a trial had, which resulted in a verdict for the plaintiff for the sum of $224, and upon which a judgment was entered in fayor of the plaintiff for said sum.
The first assignment of error is as follows: “The court erred in ordering a jury to be sworn and impaneled, over defendants’ objection, to try the above cause, and in having the same tried by a jury.” In support of this assignment of error our attention is called to Cox v. Northwestern Stage Co., 1 Idaho, [457]*457376. The syllabus says: “A failure by plainiff to deny by affidavit the genuineness and due execution of an instrument in writing set forth in the answer as the foundation of the defense does not preclude the plaintiff from showing on the trial that it was procured by fraud or misrepresentation.” There is no controversy about the character of the instrument. It is alleged by plaintiff that he executed the deed to his interest in the mining claim to defendant as security for a loan, whilst defendants allege that the deed was intended to absolutely convey the property. The only question being one of fact, it was properly referred to a jury.
The second assignment follows: “The court erred in ruling, over defendants’ objection, that this case is a proper case for a jury, and that it should be tried by a jury.” The same ruling applies to this assignment, and we do not think it was error to submit the issues to a jury.
Assignment' 3: “The court erred in overruling defendants’ objection to the following question asked witness Martin: ‘You heard me read the complaint wherein you allege you made a deed in October, 1899? State what passed between you and the defendants, Matt Dowd and John Gaffney, if anything, when you made the deed.’ ” Counsel for appellants objected, to wit: “We desire to object to that question on the ground that it is incompetent, immaterial, and irrelevant; that the plaintiff is attempting to vary the terms of a written contract or agreement by parol evidence, which in this character of a case is inadmissible. On the further ground that the plaintiff, by failing to comply with section 4201 of the Revised Statutes of Idaho, which requires the filing of an affidavit where a written instrument is set up- — by failing to do this he has admitted the execution of the deed, and that by that admission he not only admitted the execution and correctness of it, but admits the facts and things therein stated as true.” We find no error in overruling the objection to this question. It only called for a statement of what took place between the parties at the time of the execution and delivery of the deed.
The fourth assignment of error, to wit: “The court erred in overruling and denying defendants’ motion for nonsuit and dis[458] missal of said action, which was made at the close of plaintiff’s testimony.” The rule is well settled that, where there is any competent evidence to support plaintiff’s claim, tbe court should not sustain a motion for nonsuit. The record discloses that there was evidence in the case to support plaintiff’s claim, and we think the motion was properly overruled.
Free access — add to your briefcase to read the full text and ask questions with AI
STOCKSLAGER, J.
— This is an appeal from a judgment of the district court of Nez Perces county; also from an order overruling a motion for a new trial. The complaint alleges that on the twentieth day of May, 1897, plaintiff, defendants, and one Gust Erickson located a certain mining claim in the name of D. W. Martin, Gust Erickson, Matt Dowd, and John Gaffney; that thereafter, to wit, in the month of October, 1900, plaintiff borrowed from defendant Matt Dowd $100, and agreed to, and did, convey one-fourth interest in said mining claim to said Matt Dowd and John Gaffney for the purpose of securing said loan of $100, and for the further purpose that they, the said Dowd and Gaffney, might negotiate a sale of said mining claim, and on the sale thereof retain said $100 and all interest thereon, and pay to this plaintiff one-fourth of any and all purchase money that they might receive from said sale; that on the fifth day of March, 1900, said Dowd and Gaffney negotiated a sale of said mining claim with one George Runkle, and that said Dowd and Gaffney, together with Gust Erickson, for the sum of $3,000, of which $500 was paid on the said fifth day of March, 1900', and the balance, of $2,500, was paid in the month of April, 1900, sold, assigned, transferred, set over, and deeded to the said Runkle the said mining claim, together with all right, title, interest, and estate of each and every of said locators and of plaintiff in and to the same; that [456] said Dowd and Gaffney have paid to said Erickson his one-fourth, to wit, $750; that they have paid plaintiff about March 5, 1900, $500, and have neglected and refused to pay plaintiff the balance due him, to wit, $250, though often requested so to do. The answer admits the location of the mining claim by the parties as alleged in the complaint, and all the allegations of the complaint except such as are denied, to wit: Deny that they paid to the plaintiff on or about the fifth day of March, 1900, $500, or any other sum greater than the sum of $400. Deny that they have neglected or refused to pay to plaintiff the balance due him, to wit, $250, or any other sum, or that any balance is due him. Affirmatively allege: That on the ninth day of October, 1899, plaintiff prepared and offered for sale to defendants his undivided one-fourth interest in and to said mining claim for the sum of $500, payments to be made as follows: $100 cash at the time of transfer of property, and balance, $400, to be paid whenever demanded by plaintiff. To this proposition defendants acceded, whereupon plaintiff made, executed, and delivered to them his deed to his undivided interest in and to the said property, defendants at said time paying to him the sum of $100, as agreed, as a part of the purchase price of said property. That thereafter, to wit, on or about the sixth day of March, defendants placed to the credit of plaintiff, in the First National Bank of Lewiston, the further sum of $400, as balance due on said purchase price, which said amount plaintiff received and accepted as the total amount due him for said interest as aforesaid. That ever since said time, and until the time of the transfer of the whole of said mining claim, defendants were the owners in fee of said interest formerly owned by plaintiff. Dpon these issues a jury was impaneled, and a trial had, which resulted in a verdict for the plaintiff for the sum of $224, and upon which a judgment was entered in fayor of the plaintiff for said sum.
The first assignment of error is as follows: “The court erred in ordering a jury to be sworn and impaneled, over defendants’ objection, to try the above cause, and in having the same tried by a jury.” In support of this assignment of error our attention is called to Cox v. Northwestern Stage Co., 1 Idaho, [457]*457376. The syllabus says: “A failure by plainiff to deny by affidavit the genuineness and due execution of an instrument in writing set forth in the answer as the foundation of the defense does not preclude the plaintiff from showing on the trial that it was procured by fraud or misrepresentation.” There is no controversy about the character of the instrument. It is alleged by plaintiff that he executed the deed to his interest in the mining claim to defendant as security for a loan, whilst defendants allege that the deed was intended to absolutely convey the property. The only question being one of fact, it was properly referred to a jury.
The second assignment follows: “The court erred in ruling, over defendants’ objection, that this case is a proper case for a jury, and that it should be tried by a jury.” The same ruling applies to this assignment, and we do not think it was error to submit the issues to a jury.
Assignment' 3: “The court erred in overruling defendants’ objection to the following question asked witness Martin: ‘You heard me read the complaint wherein you allege you made a deed in October, 1899? State what passed between you and the defendants, Matt Dowd and John Gaffney, if anything, when you made the deed.’ ” Counsel for appellants objected, to wit: “We desire to object to that question on the ground that it is incompetent, immaterial, and irrelevant; that the plaintiff is attempting to vary the terms of a written contract or agreement by parol evidence, which in this character of a case is inadmissible. On the further ground that the plaintiff, by failing to comply with section 4201 of the Revised Statutes of Idaho, which requires the filing of an affidavit where a written instrument is set up- — by failing to do this he has admitted the execution of the deed, and that by that admission he not only admitted the execution and correctness of it, but admits the facts and things therein stated as true.” We find no error in overruling the objection to this question. It only called for a statement of what took place between the parties at the time of the execution and delivery of the deed.
The fourth assignment of error, to wit: “The court erred in overruling and denying defendants’ motion for nonsuit and dis[458] missal of said action, which was made at the close of plaintiff’s testimony.” The rule is well settled that, where there is any competent evidence to support plaintiff’s claim, tbe court should not sustain a motion for nonsuit. The record discloses that there was evidence in the case to support plaintiff’s claim, and we think the motion was properly overruled.
- This brings us to the only remaining question in the case— the sufficiency of the evidence to support the verdict and judgment of the court. Plaintiff testified that he borrowed $100 from defendant Dowd, and executed his deed to Dowd and Gaffney as security for the payment of such loan, and to enable them to dispose of the entire property in case they had an opportunity to do so. He insists that he did not at that time or at any time sell the property to defendants, but that the contract and agreement was that he was to have his one-fourth of the purchase price of the mine in case it was sold. He testifies he never read the consideration expressed in the deed, and did not know what amount was expressed therein as a consideration. The defendants each testify positively that the sale was an absolute, bona fide sale of plaintiff’s one-fourth interest in the mining claim to them, and that the $500 expressed in the deed was the actual consideration for such interest; that they deposited the $400 in a bank at Lewiston for plaintiff, which, with the first payment of $100, was in full payment for said property. H. K. Barnett, the' notary public before whom the deed was acknowledged, testified on behalf of defendants that: “I remember these parties being in my office and having this deed acknowledged. I read to Mr. Martin the description of the land and the amount of the consideration, and asked him, in the usual way, if he knew the contents of the instrument. Upon my asking him this question, he said, ‘Yes,’ of course, like any other party.” Charles Dowd, a brother of Matt, the defendant, testified that he remembered a convei*sation on the Dowd farm in the month of October, 1899, in which himself, Matt Dowd, W. A. Fabrick, and plaintiff, Martin, were present. The lines of a mining claim were being discussed. Matt Dowd made the remark to Martin, “Our lines run so and so (designating the lines), do they not?” Mr. [459] Martin says, “Our lines? I have nothing more to do with it. It is you and Gaffney for that.” Witness said to Martin, “So you have no mine now,” and Martin says, “No; I did have a mine, or an interest in one, but I have sold it out to the boys.” W. A. Fabrick testifies to the conversation in practically the same language as the last witness. Harry Dowd testified that he met Mr. Martin (plaintiff) on the Lapwai road between the 10th and 20th of October, 1899 — both being on horseback — when he had a conversation with plaintiff, to wit: “I asked him, ‘How is your mining property?’ He answered, ‘I have sold out to the boys — to Matt and John.’ I said, ‘Did you make a good deal, Martin?’ and he said, ‘Yes; I sold out for $500. I got $100 down, and will get the balance after awhile.’ I said, ‘You are safe if the mine is worthless; you are sure of your money’; and Martin said, ‘Yes.’” A receipt was introduced by the defendants, to wit: “$100. Lewiston, Idaho, Oct. 9th, 189 — . Received from Matt Dowd and John Gaffney $100 in part payment for the John Day mine. D. W. Martin.” Frank Peters testified: “Know plaintiff and defendant Dowd. Heard a conversation between them in reference to this deed. It was near the Raymond House. They were sitting down. Mr. Martin says, ‘You know, Matt, it is no trade. It was no trade.’ Mr. Dowd says, T know it was not,’ and then said, ‘The only way for you to get your money is to go and see a-lawyer,’ and he mentioned that two or three times. Martin said, ‘That is what I am going to do.’ They were talking about this mine at the time.” Defendant Dowd denies this conversation, and plaintiff Martin denies the conversation testified to by Charles Dowd, Harry Dowd, and W. A. Fabrick. Plaintiff testified that defendant Dowd paid him $26 in addition to the $100, and that it was not for helping to drive cattle to Lewiston. Dowd explains by saying that: “When we bought the property from Martin, I told him to come to Lewiston, and I hired him to help me from Weippe to Lewiston with a band of cattle. He was on the road three or four days with two horses, and I had to pay him for the work. When he came to Lewiston he bought a saddle, and I paid for the saddle for owing him for the work — helping me down with [460] the cattle. Did not pay him, or mention anything about owing him, anything on the mining property.” Upon this evidence-the jury found for the plaintiff, as indicated by their verdict. The rule that where there is a substantial conflict in the evidence the verdict of a jury will not be disturbed is too well settled to require comment or citation of authorities. There is certainly a conflict here, and, to our minds, a very serious one. Whilst to us the preponderance of the evidence seems to largely predominate in favor of the defendants, yet the jury, who had the opportunity to determine who was mistaken or who was telling the truth, passed upon this question by a unanimous verdict. The learned judge in whose court this case was tried refused to set the verdict aside. He, too, had an opportunity of weighing-the evidence as it came from the witnesses, and determining whether the verdict was the result of bias, prejudice, or any misconduct on the part of the jury. The district courts are created and empowered to try cases; this court, only to review them from the record presented.
There being a substantial conflict in the evidence, the veT-dict must be sustained. Costs are awarded to respondent.
Sullivan, J., concurs.