(190 P.) tion in accordance with established usage. [ view. In the cases cited we pointed out the [3] In this connection it is further in- distinctions in the statutes which give rise to sisted that the assignment is of itself in- the differences in the holdings. sufficient to pass choses in action. The [5] The next reason urged is that "the concluding clause of the assignment we have guaranty running to the Scandinavian-Amerquoted. It is sweeping in its terms, and ican Bank is not transferable." To this it clearly shows an intent on the part of the is a sufficient answer to say: There was no assignor to sell and transfer to the assignee transfer by any one of the written contract named in the instrument all of its personal of guaranty. The facts are that in response property of every kind whatsoever. While thereto one of the guarantors paid the obthe cases may not be uniform on the ques-ligation and sought to assign the right of tion, it is generally held, and the better rea- contribution arising thereby to another, and son is, that choses in action will pass under a general description of this sort. 5 C. J. 9416. The third reason is that the action is barred by the statute of limitations. From an examination of the dates heretofore given it will be noticed that the present action was begun more than three years, but less than six years, after the time the appellant's assignor paid to the bank the obligation of the Kugarok Mining & Ditch Company for which it had become sponsor, and the contention is that the three-year, and not the six-year, statute of limitations is controlling. But we think the question is controlled by our declsions in the cases of Caldwell v. Hurley, 41 Wash. 296, 83 Pac. 318 and Lindblom v. Johnston, 92 Wash. 171, 158 Pac. 972. These were actions for contribution by one surety. who had been compelled to answer for the default of the common principal against another, who was equally liable to answer for the default. In the one case the parties were sureties on the note of a third person, and in the other they were sureties upon the bond of a postmaster. In each of them the action was instituted more than three years, but less than six years, after the cause of action accrued, and in each of them the defense of the statute of limitations was imposed. In each case it was held that the statute was inapplicable, since the action was based upon an implied agreement arising out of a written instrument, and could be maintained at any time within six years after the cause of action accrued. [4] Counsel seek to distinguish these cases from the case at bar, but, without following the arguments, we think the governing principle is the same. If an action for contribution by one indorser of a note against another indorser of the same note, or an action for contribution by one surety on the bond of a postmaster against another surety thereon, is an action upon an implied contract arising out of a written instrument, within the meaning of our statute, clearly so is an action for contribution by one guarantor of the indebtedness of a third person against his coguarantor thereon, even though the guaranty in form be separate from the writing evidencing the debt. It is unnecessary to review the cases from other jurisdictions apparently maintaining a contrary the real question is whether this right of contribution is assignable. We have no doubt that it is, and we so held in the case of Lindblom v. Johnston, supra. The principal case cited by the respondent in support of this branch of its contention, namely, Crane v. Specht, 39 Neb. 123, 57 N. W. 1015, 42 Am. St. Rep. 562, does not, as we view it, touch the question here involved. There the defendant, in consideration that the Crane Bros. Manufacturing Company, a corporation, would sell certain materials to one Litchenberger, guaranteed payment of the purchase price of the materials. After selling certain materials to the person named, the corporation changed its name to Crane Company, and thereafter sold to the same person additional materials. The materials were not paid for, and the corporation under its changed name brought an action on the guaranty. It was held that because of this change of name there could be no recovery, either for the materials sold prior or subsequent to the change of name; this on the principle that it was an action by one party on a guaranty given to another. The principle the court thought controlling is in itself undoubtedly sound, although, were the question necessary to be determined, we might seriously doubt its applicability to the facts presented. But, be this as it may, clearly the case does not determine that a claim for contribution is not assignable. But perhaps the respondent means that the obligation of Metson on the guaranty was so far personal that he could not ar range with another to take up the obligation and confer on that other the right to exact from the other sureties their proportional share of the obligation when paid. If this be the point, we cannot think it tenable. The doctrine of contribution is a doctrine of equity. It is not based on contract, but is based on the principle that equality is equity, and manifestly the duty of a surety to respond when a common obligation is paid by a third person at the procurement of his cosurety is just as potent as it would be, were the obligation paid by the cosurety personally. Here the cosurety surrendered his property in consideration that the person to whom it was surrendered would take up this obligation, and unless this was done under an understanding or agreement that all the sureties were to be released, the liability of obligors. It is on this latter right that the the others to contribute continues. The rec-action is founded, and, so far from being satord before us shows no such understanding isfied by the payment of the principal obligaor agreement. tion, it was created by such payment. The fifth reason assigned is that, when the appellant's assignor paid this obligation, it was but paying its own debt, and because thereof had no cause of action against any one, and hence no cause of action which it could assign to the appellant. In support of this position, counsel say: The sixth reason is that the question involved is res judicata. In his answer to the complaint the respondent, as an affirmative defense, set out the proceedings in an action in which the respondent, J. W. Davidson, was plaintiff, and J. E. Chilberg was defendant, and alleged that the subject-matter of the present action was fully adjudicated therein, further alleging: this suit, and that said Chilberg is the real and beneficial plaintiff in this action; that the subject-matter of this suit is a part of the subjectmatter of said suit of Davidson v. Chilberg, and the real parties in interest in both suits are the same." "It is claimed in this case that the Pioneer Mining Company, assignor of the plaintiff, by virtue of a contract between it and W. H. Met"That the plaintiff [the present appellant] son, one of the joint guarantors, became sub- has no title or interest in or to said note and stituted for Metson as to all rights and liabili- guaranty described in the complaint, but is a ties in connection with the affairs of the Kuga-mere tool and dummy of the said Chilberg, and rok Mining & Ditch Company. Of course, this bringing this suit fraudulently for the purpose is absolutely silly. It takes at least three par- of tying up and preventing the defendant from ties to create a contract of novation. In fact, collecting his said judgment against Chilberg, by it takes the consent of all interested in the sub-issuing and serving a writ of garnishment in ject-matter. No such novation as here claimed could possibly be created without the express consent and concurrence of the defendant, Davidson, and J. E. Chilberg, the other joint guarantors, and the Kugarok Mining & Ditch Company. This in reference to Kugarok affairs. A glance at the matters involved in this contract will show that it would have needed the concurrence of some 10 or 15 other persons. The agreement 'as is,' that they refer to, may be good as between the Pioneer Mining Company and Metson; but they cannot foist off onto the defendant any person he has not agreed to accept, nor can they vary his previous rights and liabilities, nor create new ones. This contract does not affect Davidson at all. The only bearing it has on this case is to show why the Pioneer Mining Company paid the amount of this note to the bank; and it shows very clearly. [7] But this is asking us to exceed our It paid it because for a valuable consideration powers. The question whether the court er(and that a very, very valuable one) it prom-roneously sustained the demurrer is not beised Metson so to do. It was paying its own debt, and not some one else's." [6] This argument does not seem to us to be conclusive. The doctrine of subrogation, as between the appellant and the respondent, is not involved. The guarantor, Metson, contracted with the Pioneer Mining Company to satisfy an obligation on which he was jointly liable with the respondent and another. To make this contract valid required no consent on the part of the other obligors, or on the part of their common creditor. As between Metson and the Pioneer Mining Company, the mining company was perhaps but paying its own debt, when it paid Metson's proportionate share of the obligation; but, when it paid the shares of the other obligors, it did not pay either its own debt or Metson's debt, save as one person always pays his debt when he pays an entire obligation on which another is or others are jointly liable with him. While the payment satisfied the debt as between the guarantors and the principal creditor, it gave rise to a new right, namely, the equitable A demurrer was interposed and sustained to this branch of the answer, and the appellant asks us "to disregard the erroneous decision of the lower court sustaining the demurrer, take as established the facts stated in said opinion (the opinion of the court rendered in the case of Davidson v. Chilberg), and to hold that this is another good reason to sustain the decision of the court below in this case." fore us. This is an appeal by a plaintiff from a judgment of dismissal entered against it, because it was deemed that its evidence was insufficient to make a prima facie case in its favor. In such a case errors of the court committed against the other side are not reviewable. Moreover, we have quoted enough from the answer to show that it contains traversable allegations extrinsic of the judgment record, the truth of which could not be assumed, even were we to hold that a defense to the plaintiff's cause of action was stated therein. The final reason assigned requires no speIt is sufficient to say cial consideration. that it suggests inquiries which the court cannot enter upon on this appeal. The judgment appealed from is reversed. and the cause remanded for further proceedings. MOUNT, TOLMAN, and BRIDGES, JJ., concur. HOLCOMB, C. J. I dissent particularly upon the fifth contention of respondent, as (33 Idaho, 124) (190 P.) STATE v. MCBRIDE. (Supreme Court of Idaho. May 29, 1920.) 1. Criminal law 1186(4)—Errors not prejudicing defendant's substantial right will not justify reversal of a conviction. A departure from the form or mode prescribed in the Code respecting pleadings and proceedings in criminal cases, or mistakes and errors therein which do not tend to prejudice the substantial rights of the defendant, will not justify the reversal of a judgment of conviction. 2. Intoxicating liquors 132-Statutes 2254-Statutes construed together; pari materia rule is especially applicable to statutes passed at same session. The rule that statutes in pari materia should be construed together applies with peculiar force to those passed at the same session of the Legislature. ed to stand and for which appellant was tried. [1] If we adopt the theory that the information as filed was defective, in that it charged more than one offense, the defect was cured by the state's election. C. S. §§ 9084 and 9191, admonish us to disregard such defects in procedure as are those above mentioned. Section 9084: "After hearing the appeal, the technical errors or defects, or to exceptions court must give judgment without regard to which do not affect the substantial rights of the parties." Section 9191: "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right." [2] An act of the thirteenth session of the Legislature known as Senate Bill 50, approv Appeal from District Court, Canyon Coun- ed February 18, 1915 (Sess. Laws 1915, c. 11, ty; Ed. L. Bryan, Judge. J. N. McBride was convicted of having intoxicating liquors in his possession unlawfully, and he appeals. Affirmed. Eustace & Groome and O. M. Van Duyn, all of Caldwell, for appellant. T. A. Walters, former Atty. Gen., J. P. Pope, Asst. Atty. Gen., Roy L. Black, Atty. Gen., and James L. Boone, Asst. Atty. Gen., for the State. MORGAN, C. J. Appellant was accused of unlawfully possessing and transporting intoxicating liquor. He demurred to the information on the ground, among others, that more than one offense was charged therein. The demurrer was overruled and at the trial he objected to the introduction of any evidence on the same ground. After plea and before the introduction of evidence the following occurred: By Mr. Eustace: "At this time the defense will ask that the court require the state to elect upon which charge of the information this prosecution will be had. The information charges possession and transportation and a demurrer to this information has been filed and passed upon by this court, and as the information now stands it charges possession and transportation." By Mr. Stone: "The prosecution in this case elects to stand upon the charge of possession." p. 41), defines the term "prohibition district," and makes it unlawful for any person to have in his possession or to transport any intoxicating Hquor within a prohibition district, unless the same is procured, possessed, and transported under a permit therein provided for. Bill 142, approved March 1, 1915 (Sess. Laws 1915, c. 28, p. 83), which is as follows: The same Legislature enacted House "Section 1. The manufacture, disposal and transportation of intoxicating liquors for beverage purposes are prohibited in the state of Idaho. "Sec. 2. The state of Idaho is hereby constituted a prohibition district, and all statutory provisions now or which may hereafter be in force in prohibition districts, so far as the same are not inconsistent herewith, are made applicable and operative for the enforcement hereof. "Sec. 3. This act shall be in force and take effect on and after January first, 1916." Appellant insists that because section 1 of the act above quoted prohibits the manufacture, disposal, and transportation of intoxicating liquor for beverage purpose, the portion of chapter 11, supra, prohibiting possession of it is repealed by implication, and that on November 25, 1916, the date of the commission of the act of which he was convicted, it was not a crime to possess intoxicating liquor. Appellant was not called on to again plead, We said in Perrault v. Robinson, 29 Idaho, and now insists the election by the prosecut-267, at page 275, 158 Pac. 1074, at page 1076, ing attorney was such a material amendment quoting from Peavy v. McCombs, 26 Idaho, as to amount to lodging a new information 143, 140 Pac. 965: and that therefore the case was tried without an issue of fact having been framed. The plea of not guilty placed in issue every material allegation of the information, including the charge on which the state elect "The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the Legislature." 25 R. C. L. §§ 167, 168, 169, and 170. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It cannot be said that the two acts here in support of the judgment, especially in the under consideration are in conflict. When absence of request made to the trial court read and construed together, they prohibit to make its findings more definite and certhe manufacture, disposal, transportation, tain. Donaldson v. Donaldson, 31 Idaho, 180, and possession of intoxicating liquor in the 170 Pac. 94; Fouch v. Bates, 18 Idaho, 374, state of Idaho. In re Crane, 27 Idaho, 671, 110 Pac. 265. After carefully examining the at page 694, 151 Pac. 1006. findings in this case, we conclude that they meet the material issues presented by the pleadings and are sufficient to sustain the judgment. Other points are presented in appellant's brief, but we do not find them to be meritorious. The judgment appealed from is affirmed. out ultimate facts. The principal contention of appellants is thus stated in their brief: "That the evidence is insufficient to sustain the findings and judgment of the court; and affirmatively shows, on the other hand, that the findings and judgment should be in favor of plaintiffs." [3] Upon these questions the evidence has been examined and found to be sufficient to justify the findings of the trial court. We do not think any good purpose would be served by setting forth an analysis of the evidence in this case. Fraud is not presum The findings of the trial court should specifically set forth the ultimate facts found in response to the issues presented by the pleaded, and an allegation thereof must be sustained by evidence reasonably clear and conings. vincing. 2. Appeal and error 931(1)-Findings of fact liberally construed. Findings of fact are to be liberally construed in support of the judgment. 3. Fraud 58(1)-Allegation of fraud must be sustained by reasonably convincing evidence. Fraud is not presumed, and an allegation thereof must be sustained by evidence reasonably clear and convincing. Appeal from District Court, Ada County;│1. Criminal law 177, 295—Allowance of deCarl. A. Davis, Judge. Action by Agnes Fehr and Ida Harbent, copartners doing business as Needlecraft Shop, against C. L. Haworth, administrator of Emma J. Haworth and C. L. Haworth, and another. Judgment for defendants, and plaintiffs appeal. Affirmed. Barber & Davison, of Boise, for appellants. P. E. Cavaney, of Boise, for C. L. Haworth, personally and as administrator. RICE, J. This is an action to rescind a certain contract of sale of the goods and business comprising what was known as the Needlecraft Shop. Appellants allege that they were induced to enter into the contract by reason of certain false and fraudulent representations on the part of respondent C. L. Haworth and his intestate. murrer to information may be a final judgment barring a future prosecution; no bar without proof that offense thereafter charged is the same. If a demurrer to an information is allowed, the judgment is final and a bar to a future prosecution for the same offense, unless the court directs the prosecuting attorney to file another information, or, in case of an indictment, directs the case to be resubmitted to the same or another grand jury; but, in order that the action of the court in sustaining a demurrer may be a bar to a future prosecution, proof must be submitted that the offense thercafter charged is the same. 2. Indictment and information 125 (2)—Several offenses may not be joined except in prosecution for sales of intoxicating liquor. C. S. § 8829, does not authorize inclusion in an information of more than one offense, except when the offenses charged relate to the [1, 2] Appellants specify as error the fail-sales of intoxicating liquor. formation may be filed charging offense for which accused is held although complaint charged two offenses. ure of the court to find upon all the material 3. Indictment and information 122 (2)—Inissues presented by the pleadings. The findings of the court are defective, in that they consist largely of inferences and conclusions of fact rather than specific findings of fact. Findings of fact are to be liberally construed a The fact that two offenses are charged in complaint before a committing magistrate (190 P.) does not deprive the prosecuting attorney of power to file an information charging an offense for which the accused has been held to answer. 4. Indictment and information 147-Information charging more than one offense is demurrable for duplicity. Where an information charges more than one offense, contrary to the provisions of the statute, a demurrer thereto on the ground of duplicity in the information should be granted. 5. Indictment and information 132(7)-Motion to require election where information charges more than one offense should be granted. Where an information charges more than one offense, a motion on the part of defendant that the state be required to elect upon which charge it will prosecute should be granted at the opening of the trial, and, where the motion is renewed at the close of the state's evidence, it is prejudicial error to deny the same. having in his possession intoxicating liquor for beverage purposes, and of having in his possession intoxicating liquor. Appellant moved to set aside this information, and also demurred thereto. The motion and demurrer were overruled, and appellant thereupon filed a motion that the state be required to elect upon which of the offenses charged it would prosecute, which motion was denied. At the trial, and before the introduction of any evidence, the appellant renewed his motion to require the state to elect, which motion was denied with leave to renew the same later. The motion was renewed by appellant after the state had rested, which motion the court denied, but reserved the right to sustain it when all the evidence had been submitted. No evidence was introduced on the part of appellant, and the court thereupon of its own motion required the state to elect. The first cause of action stated in the information, namely transportation of intoxicating Appeal from District Court, Ada County; liquor, was elected by the state. Chas. P. McCarthy, Judge. Vicente Bilboa was convicted of transporting intoxicating liquor, and he appeals. Reversed and remanded. On December 23, 1916, appellant filed a motion that he be discharged and that his money deposited instead of bail be refunded. The court denied his motion to dismiss and ordered that his bond be exonerated. The Frawley & Koelsch and Chas. F. Reddoch, ruling of the court in declining to dismiss all of Boise, for appellant. is assigned as error. T. A. Walters, former Atty. Gen., J. P. Pope, Asst. Atty. Gen., R. L. Black, Atty. Gen., James L. Boone, Asst. Atty. Gen., and E. S. Delana, Pros. Atty., of Boise, for the State. [1] It is urged that, the court having sustained a demurrer to the information, further prosecution was barred because the amended information was not filed within the time given by the court in its order sustaining the demurrer, and the court's subsequent order directing the prosecuting attorney to submit the case for re-examination before a committing magistrate was void. C. S. § 8874, is as follows: "If a demurrer is allowed, the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, directs the case to be resubmitted to the same or another grand jury." RICE, J. Appellant was convicted of the crime of transporting intoxicating liquor. On October 2, 1916, an information was filed against him, charging possession and transportation of intoxicating liquor. A demurrer to the information was sustained, and the prosecuting attorney granted 10 days in which to file an amended information. After the expiration of the 10-day period, upon application of the prosecuting attorney, the court entered an order directing that the cause be resubmitted to a justice of the peace for the purpose of allowing a new prelim- It is to be observed that an order sustaininary examination upon matters connected ing a demurrer to an indictment, or inforwith the charges contained in the informa- mation, bars another prosecution for the same tion. On December 21, 1916, a new com- offense. The distinction between "offense," plaint was filed before a committing magis- as used in C. S. § 8874, and “act" or "omistrate, charging appellant with transporting sion," as used in C. S. § 8602, is discussed intoxicating liquor for beverage purposes, in the case of State v. Gutke, 25 Idaho, 737, possession of intoxicating liquor for bever- 139 Pac. 346. It is a sufficient answer to age purposes, possession of intoxicating liq- the contention in this case that it does not uor, and possession of intoxicating liquor appear upon the face of the record that the within the state of Idaho. The committing complaint laid before the committing magmagistrate ordered that appellant be held istrate charged the same offense as the into answer upon the charges contained in the formation to which the demurrer had been complaint. On January 29, 1917, the prose-sustained. Although the charge contained in cuting attorney filed an information charging the complaint appeared to state an offense of appellant with the crimes of transporting in- the same nature as that contained in the toxicating liquor for beverage purposes, of former information, it would have required For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |