Respondents petition for a rehearing and therein state: "The court erred in its general holding that the objection that the complaint herein does not state facts sufficient to constitute a cause of action could not be made during the introduction of testimony by the plaintiffs, and before the plaintiffs had rested, but after it developed affirmatively in the trial that the plaintiffs had no cause of action against the defendants based upon the written agreement which was a part of the plaintiffs' complaint and which was introduced in evidence at the trial."
The court did not so hold.
Respondents further assert "the court erred in holding, inferentially at least, that the objections of the respondents upon which the lower court ordered a dismissal of this cause were in fact a demurrer to the evidence or a motion for a nonsuit or directed verdict. That said objections were made under I. C. A. 5-611 to the complaint and to the evidence introduced in proof of said complaint, which objections had not been waived, and were available to the respondents at any stage in the proceedings, even in this court for the first time." *Page 96
As pointed out in the original opinion, counsel for respondents stated to the trial court, after objecting to an offer of proof, that "the defendants renew their demurrer to the complaint and to the evidence now in," and thereupon stated the ground upon which the demurrer was based. After the court sustained the objection to appellants' offer of proof, counsel for respondents stated: "For the purpose of the record we should have a decision on the demurrer." To which the court responded: "The demurrer will be sustained." Whereupon counsel for respondent stated: "I am referring to the complaint and the evidence and the demurrer is the last paragraph in the answer." In the judgment dismissing the action it is recited: "It is therefore ordered, adjudged and decreed that the demurrer of the defendants to the plaintiffs complaint herein and to the evidence offered in support thereof by the plaintiffs be, and the same hereby is sustained, and that plaintiffs take nothing by their said action, and that the same be dismissed, and that defendants recover their costs and disbursements herein, taxed at the sum of $3.00."
We are still of the opinion the trial court sustained respondents' demurrer to the complaint, incorporated in the answer, and, upon respondents' request, sustained a demurrer to the evidence before plaintiffs rested. We understand in states where the law provides for, or permits, a demurrer to the evidence its function is similar to that of a motion for a nonsuit, or directed verdict, as those motions are employed here. (64 C. J., beginning on page 371.)
We have not held, and do not desire to be understood as holding, that a trial court has no power to terminate a trial before plaintiff has rested if it should conclusively appear he cannot prevail. (64 C. J. 500.) We do hold the action of the trial court in terminating this case, when, and for the reason it was terminated, was erroneous. (64 C. J. 394, 397, 400, 431.)
I. C. A., sec. 5-611, relied on in the petition for rehearing is as follows: *Page 97
"If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action."
There is nothing in this section to support the petition for rehearing.
The second assignment of error contained in the petition is as follows:
"If this court adheres to that part of its decision herein which holds that it was improper for the trial court to either sustain the respondents' demurrer to the evidence, or to the appellants' complaint, or to entertain the objection made by the respondents until after the appellants had rested their case, then this court erred in construing the agreement which was the basis of the appellants' cause of action, for the reason that the question of the construction of said agreement was not then before this court for decision."
As we understand this assignment of error it criticises our opinion for deciding that appellant's right of recovery was not defeated by anything contained in the contract, after having held the court erred in sustaining the demurrer to the complaint and to the evidence, and in entering a judgment of dismissal.
Respondents' contention that the contract gave appellants no claim against them and that no cause of action could be predicated thereon was fully argued and submitted to this court for decision. If we had found, on consideration of this case and of the contract from which it springs, that, as respondents insisted, appellants had no cause of action, it would have been our duty to sustain the judgment, regardless of the errors committed by the trial judge, for in that event the erroneous rulings could not have affected the substantial rights of the parties. I. C. A., sec. 5-907, is as follows: *Page 98
"The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties and no judgment shall be reversed or affected by reason of such error or defect." (Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616.)
The rule of law stated in that section, and restated in many decisions of this court, made it our duty to examine the contract and complaint and determine therefrom whether a cause of action existed in favor of appellants and against respondents. The performance of that duty resulted in our decision that there is nothing contained in the contract which defeats the cause of action stated in the complaint, and that the trial court erred in taking the case from the jury and entering a judgment of dismissal. We adhere to that decision. Our opinion should not be construed to go further than to hold that as appears from the complaint and from the evidence introduced and that offered and rejected, a cause of action exists, based on the contract, in favor of appellants and against respondents. If facts exist which defeat that cause of action they may be shown at the trial.
The third and final assignment of error is:
"The court erred in its construction of said agreement in holding, if it is the intention of said decision to so hold, that the respondents were required by said agreement to do any act or thing, and particularly to do the assessment work on the mining claims mentioned in said agreement, save and except as a means of holding the easement already granted to, and paid for by, the respondents."
This assignment is based on the erroneous theory that the $1,000 mentioned in the contract was the sole consideration for the conveyance of the easement. An additional consideration was the agreement to do the assessment work, during the life of the contract, on the mining claims of appellants. The assignment also is based on a failure to distinguish between an option to purchase mining property and the contract here under consideration, which is a *Page 99 conveyance of an easement through appellants' mining claims.
The petition for rehearing is denied.
Givens and Wernette, JJ., concur.