Bateman v. Donovan

• Decision Date: 04 January 1943
• Docket Number: No. 9969.,9969.
• Citation: 131 F.2d 759
• Parties: BATEMAN v. DONOVAN.
• Court: U.S. Court of Appeals — Ninth Circuit

131 F.2d 759 (1942)

BATEMAN v. DONOVAN.

No. 9969.

Circuit Court of Appeals, Ninth Circuit.

November 13, 1942.

Rehearing Denied January 4, 1943.

Busha & Greenan, of Great Falls, Mont., for appellant.

James Donovan, of Los Angeles, Cal., and Lowndes Maury, of Butte, Mont., for appellee.

Before GARRECHT and HEALY, Circuit Judges, and BOWEN, District Judge.

GARRECHT, Circuit Judge.

James Donovan, plaintiff-appellee, filed in the District Court of the United States for the District of Montana a complaint in which he alleged breach of contract and asked damages therefor. The court overruled a demurrer, and thereafter appellant, H. W. Bateman, filed his answer, which was virtually a denial of all that was alleged in the complaint. The matter came on for trial before the court sitting with a jury. At the close of appellee's evidence appellant made a motion for a directed verdict, contending, inter alia, that no contract existed because there was no meeting of the minds of the parties, that appellee had failed to prove any consideration for the alleged contract, and that appellee had failed in proof of any damages. This motion the court denied save as to the ground pertaining to damages. Thereupon appellee requested leave to reopen the case for the purpose of introducing evidence on the question of damages, which request was granted by the court. At the close of all the evidence appellant renewed his motion for directed verdict, which was again denied. The jury returned a verdict in favor of appellee for $3,544, and judgment was entered thereon. Within ten days thereafter appellant submitted a motion for a new trial, which motion the court granted. Subsequently, forty-seven days later, appellee made a motion to vacate this order granting a new trial, and the court, upon consideration of appellee's motion, thereafter set aside said order, and reinstated the verdict and entered judgment thereon.

Bateman has appealed to this court, assigning as error (1) the refusal of the trial court to grant appellant's motion for a directed verdict; (2) the action of the trial court in granting appellee's motion to vacate and set aside its order for a new trial and reinstating the verdict of the jury and the judgment entered thereon. He contends further that the verdict and judgment are contrary to law and to the evidence — that the sum awarded appellee is excessive.

We first narrate the facts of the case as they were adduced at the trial:

In 1925 Donovan, who is a resident of Los Angeles, California, had purchased (together with other acreage not involved here) certain parcels of land located in Teton county, Montana, amounting to a section in all. Half of this section 320 acres, had been leased to Bateman, who resides at Choteau, Teton county, Montana. Bateman had paid the rental for a period including the year 1935. On September 23, 1933, the whole section was sold at foreclosure sale. Early in 1934 Bateman telegraphed Donovan, asking whether he intended to redeem the lands and offered to purchase Donovan's right of redemption. Donovan responded that he did intend to redeem and inquired of Bateman whether he knew the price at which the lands were sold. Bateman answered that "the sale price on the lands you own in Teton Cou. was $320 subject to redemption", and added: "If it should happen that you do not wish to redeem this property at the period time for redeeming, please let me have a chance to purchase the lands before redemption time is up." Then, on September 4, 1934, Donovan wrote Bateman as follows:

"I am preparing to prevent Lee Ford and his Company from securing title to the Adams Ranch by this foreclosure. I shall proceed under the Frazier-Lempke Act. As the land in Teton County was sold for a mere song I would like to have you redeem that for me and hold it for at least a year and I will pay you 8% interest on the money that you will use in redeeming it. Conditions are such here that it is impossible for me to raise any money on what property I have here and as Ford has not shown a disposition to be fair to me I must appeal to other sources and friends to help protect me. I may have the money before the year is out and as soon as I have it I will forward it to you. You can have the use of the land for such time as you want it for the next few years.

"If you can assist me in this matter wire me, at my expense, on receipt of this letter."

At the same time Donovan also wrote to an employee of his who was residing near Choteau, requesting that he go to see Bateman and learn whether he intended to redeem the section of land. The employee called upon Bateman on September 7, 1934, and advised him that if he was not going to redeem the foreclosed property, other arrangements would have to be made. Appellant declared that he was going to redeem, and on that day wired appellee, "Send quit claim deed to Teton lands I will redeem them". On the same day, upon receipt of the telegram, appellee prepared, signed, and acknowledged a quit-claim deed to the section of land in Teton county, and mailed the same to appellant, who received it in due time but who permitted the period of redemption to expire (September 23, 1934, being the final date) without his having redeemed the property. Later Donovan received from appellant a letter dated September 30, 1934, and reading as follows: "Enclosed you will find deed mailed me sometime ago. I was given to understand that it would only take about $300 to redeem the land. However the entire amount including delinquent taxes was a considerable more than I could use at this time."

On the witness stand appellant testified that he went to the sheriff's office on the last day of the redemption period with the intention of redeeming the property, but that he declined to do so because, in the sheriff's office, he "was told it would take considerably more than the amount of the sale because there were delinquent taxes on the piece of land", and that altogether the amount would be about $800. He stated that he had not known about there being delinquent taxes, and had expected to pay only $320, the sales price of the land at the foreclosure sale.

The 320 acres of the land here involved which had been leased by appellant were located in the center of land owned by him, and thus had a peculiar value to him, as indicated in a letter he wrote to Donovan in 1932, in which he said that: "The Government land in and around this territory is leasing for 10¢ per acre and your land is in our field and has water on same and we are willing to pay the price of $60.00 per year approximately twenty cents per acre for the 320 acres." After the redemption period expired and Donovan's right to redeem had been extinguished, appellant managed to continue in possession of the said 320 acres, and in 1936 he purchased the same from one Otto Wagnild, who, apparently, was the purchaser at the foreclosure sale. At the time of the trial, in 1939, Bateman was still holding the land. However, in this case there is no allegation of fraud — that when Bateman agreed to redeem the property, he was not acting in good faith. As hereinbefore stated, in this action Donovan is seeking to recover damages arising out of the alleged breach of a contract to redeem.

We now consider appellant's contention that the District Court erred in refusing to grant his motion for directed verdict. The grounds which are discussed in his brief, and which were among those urged at the time the motion was made, are that "the evidence failed to show any contract existing between the appellant and appellee: (a) Because there was no meeting of minds; (b) Because no consideration existed to support the contract".

In arguing that there was no meeting of the minds appellant points out that, as shown by the correspondence between him and appellee early in the year 1934, the two of them had contemplated that the cost of redemption should be approximately $325, the sale price of the property at the foreclosure sale, whereas the sheriff told him that some $800 were required in order to redeem, the discrepancy of about $500 being attributed to delinquent taxes. The negotiations between Donovan and appellant do show that they contemplated that the sum to be expended in redeeming the property should be the amount of the foreclosure sale, and Donovan did not make any assertion to the contrary, either in his pleadings or upon the trial. So, rather than that there was no meeting of the minds, appellant is, apparently, endeavoring to show that there was a mutual mistake with regard to an essential phase of the contract and that therefore his nonperformance should be excused. We shall discuss the matter from this standpoint.

To prove the mutual mistake, appellant attempted to establish that the actual redemption price was nearly $800 instead of about $320, by testifying that the sheriff had so informed him, that the sheriff had said that there had been owing on the property back taxes in the approximate sum of $500. This hearsay testimony was admitted without objection. On the other hand, appellee testified that he had paid all taxes and that there were no back taxes. In his instructions to the jury the judge called to their attention the fact that the preliminary negotiations between appellant and appellee indicated that the sum to be advanced by appellant in redeeming the property should be approximately $325, whereas appellant's testimony in regard to the matter was that about $800 were actually required for redemption purposes. The judge then charged the jury to consider the conflicts in the testimony and in arriving at a verdict to reconcile them where possible, and where not, to resolve them by giving to the different evidence the weight they deemed proper. Manifestly, by returning a verdict in favor of Donovan, the jury found against appellant's testimony.

Appellant argues that Donovan's testimony cannot be looked to for purposes of establishing that he...