Shallis v. Fiorito

258 P. 1117, 44 Idaho 489, 1927 Ida. LEXIS 151

• Court: Idaho Supreme Court
• Decided: July 9, 1927
• Docket: No. 4929.
• Status: Published

Opinion

GIVENS, J.

This case was remanded for a new trial because of an erroneous instruction (Shallis v. Fiorito, 41 Ida. 653, 240 Pac. 932) and upon a retrial was heard by the court without a jury. The facts are not materially different than appeared upon the former appeal and the only substantial difference in the findings was as to the amount that should be allowed for hauling approximately 6,300 yards from the Callis pit. The court in the second trial allowed for this $1,717.50, evidently on the theory that the average price was $1.22%. Such computation is based upon respondent’s interpretation of the evidence. The eorreet basis is that furnished by the testimony of one of the appellants and heretofore adopted by this court as $1.05 per cubic yard.

The other items about which appellants complain were decided upon evidence, which, though conflicting, was ample to sustain the findings and conclusions of the trial court.

The judgment should be reduced in accordance with the above conclusions, and it is therefore sustained in the sum of $773.50. Costs awarded to appellants.

Wm. E. Lee, C. J., and Budge, Taylor and T. Bailey Lee, JJ., concur.