Snoderly v. Bower , 30 Idaho 484 ( 1917 )

BUDGE, C. J.,

Dissenting. — I am unable to concur in the conclusion reached by my associates.

It is conceded that the words “according to government rule” are ambiguous. It is expressly urged by appellant that “ — at least the law ought to imply — the common and universal meaning of such term, in the locality where the contract was made. ’ ’ He insists not only that the particular rule urged by him was the “government rule” the contracting parties had in mind, but further, since as he claims, it was the rule commonly and generally known as the government rule, that alone would govern and determine the intention of the parties. But there were, as appears from the uncontradicted evidence, several rules for measuring hay in use in that vicinity, each known as a “ government rule. ’ ’ It therefore became a question of fact for the jury, under proper instructions, to determine what meaning should be given thereto, and which of the several rules in evidence the parties should be deemed to have intended. (Carstens v. Earles, 26 Wash. 676, 67 Pac. 404-408; Ginnuth v. Blankenship & Blake Co. (Tex. Civ. App.), 28 S. W. 828; Page on Contracts, sec. 1129; Elliott on Contracts, secs. 1564-1566.)

Nor does the fact that respondent testified that he had no definite rule in mind at the time the contract was entered into, alter the rule. The jury were not bound by this testimony. The admissions or declarations of the parties as to what was intended are not controlling. Under all the facts and circumstances in evidence, and in view of the fact that the contract had been pleaded and admitted, it was proper for the court to submit the meaning to be given the words “government rule” to the jury. (Bullock v. Finley, 28 Fed. 514.)

But in any event it nowhere appears that the appellant was misled by the proof, and the evidence is amply sufficient to sustain the verdict. Section 4824, Rev. Codes, provides, that where there is substantial evidence to support the verdict it must not be set aside. (Herculith Co., Ltd., v. Gustafson, 22 Ida. 537, 126 Pac. 1050; Coe v. McGran, 23 Ida. 582, 131 Pac. 1110; Denbeigh v. Oregon-Washington R. etc. Co., 23 Ida. 663, 132 Pac. 112; Meeker v. Trappett, 24 Ida. 198, 133 Pac. 117; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929; Casaday v. Stuart, 29 Ida. 714, 161 Pac. 1026; Huffaker v. Edgington, ante, p. 178, 163 Pac. 793.) Section 4225, Rev. Codes, provides that: “No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that the party has been so misled, the court may order the pleading to be amended, upon such terms as may be just.” Section 4226, Rev. Codes, provides that: “Where the variance is not material, as provided in the last section, the court may direct the facts to be found according to the evidence, or may order an immediate amendment, without costs.” In Clopton v. Meeves, 24 Ida. 293-298, 133 Pac. 907, this court, applying the above sections, said: “Under the liberal rule adopted by our statute, we think the court might properly find according to the facts and that this variance would not be fatal. If the trial judge had thought it necessary, he might have ordered an immediate amendment to support the evidence and finding.” (See, also, Western Loan etc. Co. v. Kendrick State Bank, 13 Ida. 331, 90 Pac. 112.) The trial court then had ample authority to direct the jury to find the facts according to- the evidence without requiring the pleadings to be amended. Since the instructions of the court are not in the record we must presume that the court correctly instructed the jury on all of the material issues involved, and that the instructions taken as a whole fairly submitted the case to the jury. (Hopkins v. Utah Northern Ry. Co., 2 Ida. (277) 300, 13 Pac. 343; Gumaer v. White Pine Lumber Co., 11 Ida. 591, 83 Pac. 771; McLeod v. Rogers, 28 Ida. 412, 154 Pac. 970.)

Under our code system the rule applicable to the case at bar, is as follows: “It has been held that under a pleading alleging an express contract, a recovery on an implied contract may be sustained, where the defendant’s rights have been fully protected. At most it is but a variance between the pleadings and the proof which may be disregarded unless it appears that the defendant was misled by it.” (9 Cyc. 749; Clapp v. Schaus, 156 App. Div. 681, 141 N. Y. Supp. 451; Lufkin v. Harvey, 125 Minn. 458, 147 N. W. 444; Anderson v. Akins’ Estate, 99 Neb. 630, 157 N. W. 334; Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025; Nyhart v. Pennington, 20 Mont. 158, 50 Pac. 413; Palmer v. Miller, 19 Ind. App. 624, 49 N. E. 975; Buckingham v. Harris, 10 Colo. 455, 15 Pac. 817, following the ease of Sussdorff v. Schmidt, 55 N. Y. 319; Wells v. Crawford, 23 Colo. App. 103, 127 Pac. 914; Chicago R. I. & P. Ry. Co. v. Bankers’ Nat. Bank, 32 Okl. 290, 122 Pac. 499.) These cases were decided under statutes practically identical with our own, in the respects above referred to. It is clear from the whole record, in my opinion, that substantial justice has been done, and that the judgment should be affirmed.

A new trial should not be granted, as no other or different means can be adopted, than was followed at the trial for determining the amount of hay that the respondent stacked— this was the real question submitted to the jury, and I think fairly so. Should the complaint be amended so as to state a cause of action upon a quantum meruit basis, the proof that could be properly offered would be practically the same as appears in the present record. In other words, I do not think, under the sections of the statute above cited, the authorities referred to, and under the facts of this ease, that a technical rule of pleading should be invoked when it is clear that the rights of the litigants have been fairly adjudicated.