For reasons hereafter stated, I concur in affirming the order of the trial court approving and confirming the sale of the property in question to respondent, the Cosgriff Outdoor Advertising Company, Inc., for $5,026, but I think the case should be remanded to the trial court for the purpose of determining the amount and awarding to appellant Gibbs interest on the down payment made on his bid, together with any other legitimate costs and expenses incurred by him in purchasing the property, including necessary expense he may have incurred in making preparation for the final payment upon consummation of the *Page 522 sale to him. (See Las Vegas Ry. P. Co. v. Trust Co., 15 N.M. 634,110 P. 856, at 862.)
This was not a receiver's sale. Neither was it a judicial sale. The trustees were not receivers. They were former officers of the corporation, and under the statute and decisions of this court (secs. 29-158 and 29-611, I. C. A., andRowe v. Stevens, 25 Idaho 237, 251, 137 P. 159), they were in possession of the property originally as the duly elected and qualified directors of the corporation and later as trustees under the statute. They had power under the statute to sell the property "to settle the affairs of said corporation." (Sec. 29-611; Crystal Pier Co. v. Schneider, 40 Cal. App. 379,180 P. 948.) It is true that the court authorized them to sell this property, but that was a power with which the statute (sec. 29-611) had already invested them and for which they needed no order of court.
I concur in affirming the order, approving the sale to the advertising company, for the reason that Gibbs appears to have made his bid and purchased the property with the understanding and knowledge that the sale to him would have to be submitted to the trial judge and confirmed; and when he recognized either the necessity for or power of the court to confirm the sale, he necessarily admitted the like power to reject it. I find nothing in the record that would indicate an abuse of discretion on the part of the trial judge. I do think, however, under the circumstances of this case, the appellant should be reimbursed for all legitimate expenditures and disbursements he has incurred by reason of this transaction. He made his bid in good faith, paid $1,000 on the deal at the time of the sale and was prepared to carry out his contract and make final payment. He did not ask for the return of his money and his interest costs and expenses or any part thereof; he only asked that the sale be consummated as agreed upon when he made his down payment.
The prayer that the sale be confirmed covered the entire transaction and all the relief to which appellant deemed himself entitled, and he has assigned the refusal of the court to grant him such relief as error. Now, under such a prayer and such an assignment of error, if he shows himself entitled *Page 523 to any relief, it is clearly the duty of this court to grant it. To deny him anything, if he appears to be entitled to less than he claims, simply because he did not specify the lesser relief, and assign error because of its denial, would be only to requite him with an erudite technique in procedure far exceeding any hypercritical "judicial imagination" necessarily involved in allowing him some modicum of relief.
Givens, J., concurs in the opinion of Morgan, J., and the latter portion of the first paragraph of the special concurrence of Ailshie, J.