Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-09-29
ENGLEHART MUST
PAY THE NOTES
SUPREME COURT REVERSES
RULING OF JUDGE WAL
TIERS OF THIS DIST.
Case EfFecting Many Settlers I'm
der Great Western Irrigation Sys-
tenn Respecting Unpaid Notes for
Water.

Boise, Sept. PA decision OF i'm
portance, not only for the legal rul-
ings, but on account of its connec-
ton with the promissory notes Civ
en- by settlers on the Mountain Home
project of the Great Westrn Beet
Sugar company in that it holds that
such settlers will be required to pay
only for the water actually delivered
in the event they rescnid the con-
tract, was rendered by the state SUI
preme court Tuesday, in the case
of Fred b. Daniels. appellant, against
Frank Englehart, respondent.
brought up on appeal from the judg-
ment of Judge Edward A. Walters Of
the fourth judicial district coourt in
and for Gilmore County
Judge Walters found for the dcfan-
dant The plaintiff appealed, and the
supreme court reversed the judg-
ment and remanded the cause with
direction to the trial court to permit
the defendant to amend his answer
or file a cross complaint if he sees
fit to do so. The costs are given in
favor of the appellant.
Attorney z. NJ. Wolfe represented
Daniels while Attorney j. G. Watts
appeared for Englehart.
The syallabus by the court includ-
es two vital rulings of technical
legal character, as follows:
First-The maker of a promissory
note cannot avoid payment of the
same on the grounds of failure of
consideration, where the answer and
proofs admit that there was not a
total failure of consideration and that
he in fact received and retains a part
Of the consideration as the samew as
agreed upon.
Second-Where there has been q
partial failure Of consideration for the
execution Of a promissory note, the
maker of the note in order to attain
relief must either rescind the con-
tract and return the consideration
received or claim damages for breach
of contract or pursue some remedy
whereby the holder Of the note may
be enabled to receive Just compensa-
ton for such part of the considera-
ton as actually passed.
"This is an action on a promissory
note. PLAINTIFF lleged that he was a
bona fide purchaser Of the note prior
to maturity. Defendant answered al
hitting the execution of the note
and that the same had not been paid
but denied that the plaintiff was a
bona hde holder of the note by en-
dorsement prior to maturity thereof
"The defendant also alleged as a
defense that the note was executed
as part payment for a water right
front he Great Western Beet Su
gar company and that the compan,
promised and agreed to construct
reservoirs, canals and bitches anc
furnish water for his tract of lanC
comprising 100 acres which consti
tuted the consideration for the not'
sued upon. 1t was alleged in the an
swer that the plaintiff was vice pres
ident and agent of the Great Western
Beet Sugar Company a he time thu
contract was made and the note wa
executed and that he had full know
ledge of the consideration and tn
terms of the agreement entered into
"The defendent by way of showing
failure OF consideration alleged il
paragraph OF his answer as follows
That said ditch was not completed 2
agreed by the said Great Western
Beet Sugar company on the 91st da
Of May. 1907 and is not pow complet
ed of sufficient capacity to delive
water was not delivered to the lam
Of defendant and others entitled t
water under said ditch and that wa
ter was not delivered to said defend
dant in any sufficient quantity what
ever more than sufficient to waite
and one-half acres as above stated
"The plaintiff moved for iudgmer
on the pleadings and this motion We
predicted on tie theory that he on
swer did not show a failure Of COZ
sideration. and that under the autho
r. a j
and Caldwell VS.. Rudy. Ida.
the defendant could not successful
defend on the ground of want of COZ
sideration where his answer Shove
on its face that part c0nsiderati,
had in fact been received and tn
there had no been a total failure
consideration and that defendant h'
not return the water contract al