Armstrong v. Larsen

• Decision Date: 03 December 1919
• Docket Number: 3378
• Citation: 55 Utah 347,186 P. 97
• Court: Utah Supreme Court
• Parties: ARMSTRONG v. LARSEN

186 P. 97

55 Utah 347

ARMSTRONG v. LARSEN

No. 3378

Supreme Court of Utah

December 3, 1919

Appeal from Seventh District Court, Sanpete County; George Christensen, Judge.

Action by John Armstrong against James Larsen.

Judgment for defendant, and plaintiff appeals.

REVERSED and REMANDED, with instructions.

Dilworth Woolley, of Manti, for appellant.

James W. Cherry, of Mt. Pleasant, for respondent.

GIDEON J. CORFMAN, C. J., and FRICK, WEBER, and THURMAN, JJ concur.

OPINION

GIDEON, J.

This is an action for breach of contract. On March 12, 1917 plaintiff and defendant entered into the following written agreement:

"This contract between James Larson of Mt. Pleasant, Utah, and John Armstrong of Ephraim, Utah, the said James Larsen agrees to sell 1,000 lambs to John Armstrong and deliver them on his farm in Pigeon Hollow October 5th, or 6th, 1917, for ten cents per pound, said lambs to be weighed up dry with dry fleeces after twelve hours stand in dry corral; all body wrinkles, scrubs, beaters, lame and sick cut back; said lambs to be dipped if there is dipping order and to pass inspection at time of delivery; said James Larsen hereby acknowledges receipt of fifty cents per head as part payment; that balance of purchase price to be paid at time of delivery."

The foregoing contract is alleged in the complaint; also, the delivery of 511 of the 1,000 lambs. Damage is claimed for failure to deliver the full number specified.

The answer admits entering into the written contract, but alleges:

"That in addition thereto the said parties expressly agreed that the number and kind of lambs agreed to be sold and delivered was restricted and limited to the male wether lambs to be born to the herd or band of sheep then owned by defendant. Defendant alleges that the number of male wether lambs theretofore born of that herd or band of sheep owned by him at the date of said agreement amounted to 511 head, and no more, all of which were delivered to said plaintiff pursuant to said agreement."

As a further defense, it is alleged that at the date of delivery of the 511 lambs defendant agreed to deliver an additional 100 lambs not included in the contract at the price of ten cents per pound, and that plaintiff accepted such additional lambs in full satisfaction of defendant's obligations under said agreement.

In his reply plaintiff admitted the receipt of ninety-one lambs in addition to the 511, but denied that the same were received in discharge or release of the defendant from the obligations of the written contract.

All that part of defendant's answer alleging that an agreement was made by the parties to the effect that the terms of the contract were restricted to either lambs born to the herd of defendant or to wether lambs was stricken out on motion of plaintiff as "sham and irrelevant." On the issues then remaining the case went to trial. The jury returned a verdict in favor of the defendant. Plaintiff appeals.

The admission of testimony over plaintiff's objections, the giving of certain instructions, and the refusal to give other instructions as requested by plaintiff, are assigned as error.

The status of the pleadings left only two questions for the jury to determine: (1) Did the plaintiff and defendant agree that the delivery and acceptance of the additional ninety-one lambs at the price of 10 cents per pound should be in full satisfaction of defendant's obligations under the contract? (2) If such lambs were not so accepted, what amount of damages, if any, was the plaintiff entitled to recover? If the jury determined the first question in favor of defendant, it was not necessary to consider and determine the second.

The court was evidently of the opinion that by the terms of the contract the defendant was not entitled to limit or vary the written agreement by showing that only wether lambs and such wether lambs as were born of defendant's herd were intended to be included in the contract. The defendant testified, however, in repeating the alleged conversations between plaintiff and defendant at the date of the delivery of the 511 lambs, and in answer to the statement made by the plaintiff, that he (plaintiff) could buy the number of lambs not delivered as fixed by the contract and make the defendant pay the difference:

"You can do as you like about that, and then I says you are not entitled to this kind of lambs; you are not entitled to anything but wether lambs."

In answer to the further question, "Was there anything said about what he was entitled to do?" the witness replied, "I said that he wasn't entitled to anything but fat wether lambs." The same thought was afterwards repeatedly reaffirmed in the testimony of the same witness. This and other similar testimony by the defendant and his witnesses must have tended to impress the jury that it was the intent of the parties at the time of making the contract that only wether lambs from the herd of the defendant were included in the contract and that the defendant was not obligated to deliver any other or additional lambs. Much of this testimony was admitted without objection, but at the close of the case the plaintiff requested the court to give the following instruction:

"You are instructed that the contract in this case specifies 1,000 head of lambs and that it does not limit the lambs which Larsen agreed to sell to the wether lambs of Larsen's herd; but that the term 1,000 lambs' means simply 1,000 young sheep, which may be ewe lambs or wether lambs or may be made up of both ewe lambs and wether lambs. Neither does the contract apply only to the lambs of Larsen's herd; the only limitations in the contract being that the lambs of the kind therein mentioned, to wit, the sick, the cripples, those with body-wrinkles, and beaters, which are the motherless...