Baer Bros. Land & Cattle Co. v. Reed, 4384.

• Decision Date: 30 June 1952
• Docket Number: No. 4384.,4384.
• Citation: 197 F.2d 569
• Parties: BAER BROS. LAND & CATTLE CO. v. REED et al.
• Court: U.S. Court of Appeals — Tenth Circuit

197 F.2d 569 (1952)

BAER BROS. LAND & CATTLE CO. v. REED et al.

No. 4384.

United States Court of Appeals Tenth Circuit.

May 31, 1952.

Rehearing Denied June 30, 1952.

Albert T. Frantz, Denver, Colo., for appellant.

Lowell White, Denver, Colo. (Walter A. Steele, Denver, Colo., was with him on the brief), for appellees.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

This action was instituted in the United States District Court of Colorado by appellees, N. H. Reed and W. A. Devenport, against appellant, The Baer Brothers Land and Cattle Company, to recover the balance due on the purchase price of cattle delivered by appellees to appellant under the terms of a written contract. After trial to a jury, in which voluminous and sharply conflicting evidence was adduced, the jury returned a verdict for the full amount prayed for by appellees, plus interest. This appeal is from a judgment on that verdict. Although numerous specifications of error are assigned on appeal, we think they may be fairly epitomized as embodying the contention that under the evidence, the trial court should have directed a verdict for appellant. Our precise question, therefore, is whether there was any competent evidence to support the verdict of the jury.

Appellees, Reed and Devenport, both residents of the State of Texas, are partners in the cattle business in that State. Appellant is incorporated under the laws of the State of Colorado, and S. M. James is its President. Devenport and James met for the first time on June 28, 1948, in Amarillo, Texas. After showing James some cattle he was selling to other parties, Devenport accompanied James to the ranch of the Cattle Company at Meeker, Colorado, and as a result of negotiations, the contract involved here was executed at the ranch. The contract, dated July 3, 1948, between Devenport as seller and James as buyer "covers the sale of the following described livestock, for the consideration of the sum of $10,000.00 part payment, the receipt of which is hereby acknowledged by the seller; balance of purchase price to be paid upon completion of contract. Number — 500; Description — Yearling Hereford Steers (weighing approximately 450 lbs. each, more or less); Branded — Left hip; Price — 28¢ lb." It was further provided that "these cattle are now located on Reed & Devenport Ranches, Big Spring, Texas and are to remain on Ranches of Reed & Devenport until delivered. Delivery to be made on or before July 17, 1948, at the buyer's option at K-T Ranch, Meeker, Colorado, F.O.B. cars, Big Spring, Texas, and to be weighed as follows: when loaded stockyards weights less 3%. All cattle are to be sound and in merchantable condition, and free from any contagious disease. Crippled, deformed, blind-eyed, locoed, lump-jawed, or otherwise deformed animals may be rejected by the buyer. Health and brand certificates to be furnished by the seller. All cattle are to be delivered free of all encumbrances and with a clear title except unpaid balance of purchase price which will be due and payable when cattle are sold by buyer on or before December 15, 1948, with interest at 5% per annum payable at maturity. Buyer to pay R. R. freight to Rifle, Colorado, and pasture cattle on K-T Ranch."

In accordance with the terms of the contract, the Cattle Company paid Reed and Devenport $10,000.00, and thereafter three shipments of cattle were made by appellees to the Cattle Company. The first, consisting of 142 head of steers, arrived at Rifle, Colorado, on July 17, 1948; the second of 309 head arrived on July 21; and the third of 49 head arrived about August 10.

When the Cattle Company failed to pay the balance due under the contract, appellees brought this suit for $59,872.00 and interest at the rate of 5 per cent before maturity and 6 per cent thereafter. In its answer, the Cattle Company denied that it was a party to the contract, contending that it was entered into by James individually. In the alternative, it counterclaimed for the sum of $37,405.03 for the alleged breach of the contract in the following respects: the cattle were not all delivered on or before July 21, 1948; the cattle were not weighed at Big Spring, Texas; the submitted weights were false, fraudulent and fictitious; and ten head of cattle were so weak and diseased when delivered that they died within a few days.

Appellant has abandoned its contention that James executed the contract in his own behalf and not in his capacity as President of the Cattle Company. The points relied upon for reversal are aimed principally at the sufficiency of the evidence to establish the contract weights and grade of the cattle.

Devenport testified that the first two shipments, consisting of 451 head of steers, were weighed at the Taylor Country Livestock Auction Company, Abilene, Texas; that he stood behind the weigher, observed the weights and saw the weigher put them on the weight slips. He stated that he also counted the number of cattle in each lot weighed and saw the weigher enter that number on the slips; that he knew the number of cattle and total weights appearing on the slips were accurate. Devenport further testified that Charlie Morris was the owner of the Auction Company at Abilene where the cattle were weighed; that Morris weighed part of the cattle and other parties working there weighed some, but that the name "Morris" was written on all of the slips because he was the owner. Having been thus identified, the weight slips were offered and admitted in evidence.

Two depositions of Morris were read to the jury. In his first deposition, Morris stated that he did no public weighing and had no experience or training in that line; that he did not weigh any cattle for Reed and Devenport in July, 1948; that the slips shown to him were not made or signed by him; that the cattle were weighed at another auction company; that he had knowledge of the cattle involved because he helped load the shipment for Reed and Devenport to Rifle, Colorado, via The Texas & Pacific R. R. Company.

In a later deposition, Morris identified the weight slips and stated that they were "scale ticket weights of cattle brought to the Taylor Auction and asked to be weighed by Mr. Reed and Mr. Devenport"; that he weighed part of them and the rest were weighed by other persons working there; that the scales were checked by the State and had a State seal on them; and that the weights and number of cattle shown on the slips were correct and accurate. When asked what kind...