I am unable to agree with that part of the opinion of Justice Givens wherein it is *Page 356 contended that the evidence is sufficient to prove clearly and satisfactorily that "the merchandise" was included in the chattel mortgage by "mutual mistake." I have read and examined the transcript of the evidence most carefully as given at the first trial and also at the second trial and am prepared to say that, in my opinion, the evidence as to mutual mistake, as given on the second trial, is not as strong as it was on the first trial. The same witnesses were called on the second trial who testified on the first trial with the following exceptions: Almon J. Hall died prior to the second trial and his testimony given on the first trial was read to the jury in the second trial. Mrs. Shellhaas, who testified on the first trial, was not present at the second trial and her testimony given at the first trial was not read to the jury. Mary Werneth, recorder of the county, did not testify on the first trial but was called on the second trial to simply identify the Rambo chattel mortgage. Mr. Shellhaas who did not testify at the first trial testified at the second trial, but the entire gist of his evidence was merely that Mrs. Shellhaas had full authority to act for him in all respects in reference to his claim which was secured by this mortgage. His entire testimony as given on the second trial is as follows:
"Q. State your name to the jury.
"A. George Shellhaas.
"Q. And where do you reside?
"A. Weiser, in the Wulff building.
"Q. What is your business?
"A. Bakery business.
"Q. In Weiser?
"A. Weiser, yes, sir.
"Q. Are you the George Shellhaas, one of the mortgagees in the mortgage given by Charles A. Rambo as mortgagor to the Nampa Weiser Company and George Shellhaas on May 6, 1932.
"A. We have a mortgage. I could not say the date.
"Q. You are that George Shellhaas?
"A. Yes, sir.
"Q. You operate a bakery?
"A. Yes, sir. *Page 357
"Q. Are you married?
"A. Yes, sir.
"Q. Give your wife's name?
"A. Luella.
"Q. In the operation of the bakery business what part of the business is delegated by you to Mrs. Shellhaas to attend?
"A. She has charge of the sales department and book work.
"Q. Do you attend to any of those things?
"A. No, sir.
"Q. What part of the business do you attend to?
"A. The bakery end and buying materials.
"Q. In the making of collections, who attends to that?
"A. Mrs. Shellhaas.
"Q. And in taking the mortgage from Mr. Rambo, who attended to that for you?
"A. Mrs. Shellhaas.
"Q. Did she have full authority to represent you in that matter?
"A. She did."
Mr. Creem, who represented the other mortgagee, testified that he called Mrs. Shellhaas by telephone and talked with her in reference to this matter and he was asked the question, "Will you tell the jury what you told Mrs. Shellhaas was to be incumbered by that mortgage." Objection was made to this question on the ground it was hearsay, and objection was overruled. He then answered:
"I told Mrs. Shellhaas we were up there to draw a mortgage for the debt owed by Rambo; that is, I supposed it was money — montioned as due from the Rambo business, and, that the mortgage was going to be taken on the truck and the fixtures to secure it."
He was then asked: "And what did she say," to which he replied:
"She said 'Alright, you go ahead and I will leave it all to you.' That is my best recollection of what she said."
Now it is apparent that the foregoing testimony of Creem did not prove anything and it was objectionable as unmistakable hearsay and was not a conversation that took place in the presence of a representative of the plaintiff nor was it a *Page 358 conversation that took place between the mortgagor andmortgagee. This was merely a telephone conversation purporting to have taken place between the agents of the two mortgagees, and it is now offered and admitted to bind the insurance company in a suit in which both the mortgagor and mortgagees are interested in securing a judgment against the insurance company for loss which occurred by fire destroying the property covered in the mortgage, as actually made and signed by the mortgagor. It contravenes all known rules respecting the exclusion of hearsay evidence. (Kier v. Hill, 8 Idaho 111, 114,66 P. 931; Whitman v. McComas, 11 Idaho 564, 570, 83 P. 604;Mabb v. Stewart, 147 Cal. 413, 81 P. 1073, 1076; 10 Rawle C. L., p. 960, secs. 132-134; 3 Wigmore on Evidence, secs. 1361, 1362.) While Rambo, the mortgagor, may have heard what Creem said at his end of the telephone line, he had no way of knowing what Mrs. Shellhaas said in reply except as told him by Creem. The very fact that Creem was even talking to Mrs. Shellhaas is only known to Rambo or anyone else, except Mrs. Shellhaas, through hearsay. Certainly his repetition of this telephone conversation was the purest hearsay.
I cannot yield my approval to the contention that such evidence is competent or even admissible to prove that a mutual mistake was made, where the written mortgage was executed by the mortgagor to the mortgagees on the very date, and almost at the very moment, this supposed conversation took place and which covered property it is now claimed was not intended to be covered by the mortgage. It seems to me that the law on this subject to too well settled to provoke controversy; furthermore, as it applies to this case the former opinion (56 Idaho 529, 537, 56 P.2d 763) is the law of the case and in this respect is res judicata.
Budge, J., concurs. *Page 359