Weiser River Fruit Ass'n v. Feltham

BUDGE, C. J. This action was brought to recover the purchase price of apples sold by respondent to appellant under a written contract and to recover the sum of $1,000 which had been deposited by appellant with the First National Bank of Weiser to be forfeited as liquidated damages in the event he should fail to take the apples contracted for or to pay for them. Respondent recovered judgment for $1,908.65. This appeal is from the judgment. [636] There is no written waiver of the undertaking on appeal in the record, nor does the record contain a certificate of the clerk that an undertaking on appeal in due form was filed as required by Rev. Codes, sec. 4821. The record on appeal must show that an undertaking on appeal in due form has been properly filed or that the same has been waived in writing, or the appeal will be dismissed. (Rich v. French, 3 Ida. 727, 35 Pac. 173.) The only undertaking appearing in the record, after reciting the recovery of the judgment and that appellant “has appealed therefrom ....,” provides as follows: “And Whereas, the said appellant claims a stay of proceedings and is desirous of staying the execution of said judgment so appealed from pending the trial of said case in the said Supreme Court of the State of Idaho: “Now therefore, in consideration of the premises and of such appeal we the undersigned, do hereby jointly and severally undertake and promise and do acknowledge ourselves jointly and severally bound in the sum of $3,818.00, that the said appellant will pay the amount of the judgment so appealed from, and all costs if the appeal be withdrawn or dismissed or the amount of any judgment and all costs that may be recovered against said defendant Lot L. Feltham, in said action in said Supreme Court.” Revised Codes, sec. 4808, provides: “ . . . . but the appeal is ineffectual for any purpose, unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.” The undertaking therein required to be filed is prescribed by Rev. Codes, see. 4809. This section defines the conditions which the appeal bond must contain and limits its amount to $300. Rev. Codes, sec. 4810, prescribes the undertaking which must be given in.the event a stay of execution of a money judgment is desired; this bond must be in double the amount of the judgment. It will be noticed from the provisions contained in the undertaking given by appellant and [637] quoted above that it purports to be the one prescribed by Rev. Codes, sec. 4810. We are therefore confronted with the question: Can the undertaking given by appellant to stay execution be construed to include the $300 undertaking on appeal required by Rev. Codes, secs. 4808 and 4809? From the authorities hereinafter cited, it is apparent that no such construction can be placed upon appellant’^ bond, and therefore “the appeal is ineffectual for any purpose.” (Rev. Codes, secs. 4808 and 4809.) The precise point was before the supreme court of California in an early ease, wherein it is said: “But the former is required for one purpose, and the latter for a different purpose. It cannot be denied that the legislature had the power to enact the statute in the form which it bears. Now, when an undertaking is required to render an appeal effectual for any purpose, how can the contention be sound that since an undertaking prescribed for another purpose, i. e., for a stay, contains in it the same terms and conditions, with others, as are to be inserted in an undertaking on appeal, that, therefore, the stay undertaking is sufficient for both purposes? The statute is one, and its various sections must be construed together, and it would be a singular conclusion that the legislature intended that an undertaking required for a declared purpose should operate to accomplish a different purpose; and that, when it is expressly declared that it shall have no such effect. That would be to deduce of a deelared intention a different intention by implication; that the legislature, when it declared one thing, meant another and different one. We cannot declare of a statute making in words an express declaration of its intent a different intent. When an intent is declared, there can be no implication of a different intent.” (Duffy v. Greenebaum, 72 Cal. 157, 13 Pac. 323, 12 Pac. 74; Perkins v. Cooper, 87 Cal. 241, 25 Pac. 411.) The same rule was again announced by the supreme court of California in Duncan v. Times-Mirror Co., 109 Cal. 602, 42 Pac. 147, the court, after following Duffy v. Greenebaum, [638] supra, saying: “In addition to the reasons there given for the ruling, it may be suggested that $300 is not always sufficient to secure to a respondent his costs and damages, and it was competent for the legislature to require further security in case a stay of execution was desired; .... ” The supreme court of Montana, in passing upon the same question, has said: “One undertaking in the sum of $300 is required to secure the appeal. The other must be in double the amount of the judgment in order to stay the execution. The fact that the legislature has prescribed that the latter shall contain all the conditions required to be contained in the former is no valid reason why the appellant should be excused from securing the appeal as the statute provides. The former has one purpose in view, viz., to secure the appeal, and this purpose is not accomplished unless it meets all prescribed requirements. The latter must contain all the necessary conditions, or the stay will not be effectuated. Standing as separate instruments, each must be judged by its own terms. The conditions of one cannot be considered as the conditions of the other. The incorporation of both in the same instrument does not render their purposes any less diverse, nor does it make one a part of the other, either by way of addition to or qualification of its terms.” (Hill v. Cassidy, 24 Mont. 108, 60 Pac. 811, 812.) The Montana court then quotes with approval from Duffy v. Greenebaum, supra. A similar view was expressed by this court in Wilson v. Boyle, 12 Ida. 295, 85 Pac. 928. With the reasoning of the foregoing authorities we are in entire accord and we therefore hold that a supersedeas bond given in accordance with the provisions of Rev. Codes, see. 4810, cannot be construed to include the $300 undertaking on appeal required by Rev. Codes, secs. 4808 and 4809, rand that without the latter “the appeal is ineffectual for any purpose.” The appeal is dismissed. Costs awarded to respondent. Morgan and Rice, JJ., concur. (October 2, 1918.) Evidence — Contracts—Warranty—Damages—Pleadings. 3. It is not error for the trial court to strike from an affirmative answer matter reciting negotiations between the parties prior to the execution of a written contract, and matter explanatory of the terms thereof, in the absence of ambiguity. 4. When a deposit is made of a lump sum to be paid in case of breach of the contract, the question as to whether such lump sum is to be regarded as a penalty or liquidated damages generally is determined by the intention of the parties to the contract. Where 'the question is not urged by either of the litigants, an appellate court will not, on its own motion, construe the contract where it is one in which the parties might have agreed upon the lump sum as liquidated damages. 5. The W. Eruit Association brought an aetion upon a written contract, wherein the quality of the article sold was guaranteed to be of certain grade. E. defended upon the ground of breach of warranty. The jury found there was no breach of warranty. Held, that all defenses and counterclaims for damages for breach of warranty fail. 6. Where respondent and appellant entered into a written contract for the sale of apples described therein, and appellant at the trial contended that there was a breach of warranty as to the quality and grade of the apples, testimony on the part of respondent that appellant examined the apples before the execution of the contract, and expressed himself as satisfied with their condition, was properly admitted as tending to prove an admission on the part of appellant. Judgment for plaintiff affirmed.