Bartlett-Heard Land & Cattle Co. v. Harris

• Decision Date: 07 July 1925
• Docket Number: Civil 2234
• Parties: THE BARTLETT-HEARD LAND AND CATTLE COMPANY, a Corporation, and DWIGHT B. HEARD, Appellants, v. CLIFFORD B. HARRIS, Appellee
• Court: Arizona Supreme Court

238 P. 327

28 Ariz. 497

THE BARTLETT-HEARD LAND AND CATTLE COMPANY, a Corporation, and DWIGHT B. HEARD, Appellants, v. CLIFFORD B. HARRIS, Appellee

Civil No. 2234

Supreme Court of Arizona

July 7, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Affirmed.

Messrs Armstrong, Lewis & Kramer and Messrs. Kingan, Campbell &amp Conner, for Appellant.

Messrs Baker & Whitney, for Appellee.

OPINION

LOCKWOOD, J.

The Bartlett-Heard Land and Cattle Company, a corporation, hereinafter called defendant, had for many years among other things been engaged in the raising of pure-bred Hereford and Durham cattle. Dwight B. Heard was, during the period involved in this case, its vice-president and general manager. Clifford B. Harris, hereinafter called plaintiff, was during the same period a cattle broker with his office in Los Angeles, California.

Some time before May 23, 1919, plaintiff and defendant had been negotiating for the purchase by the former from the latter of certain Durham cattle. In the early part of May one F. F. Stonerod, who was in the employ of the plaintiff, visited defendant's ranch and purchased certain bulls, and also was shown a number of other cattle on the ranch by Lars Lassen, its superintendent. Stonerod asked Heard for permission to take some photos of the cattle, which was granted, and a number of these were taken by the former, with the aid of a photographer from Phoenix. After they were made, they were exhibited to Heard, and among them one of some white-faced Hereford heifers, which Stonerod told Heard was "your prize bunch of cattle." The bulls purchased were shipped, and Stonerod returned to Los Angeles. Shortly after Heard wired plaintiff, asking if he wished to buy the herd of shorthorns concerning which they had been negotiating. Harris was out of the city, and Stonerod sent the following telegram to Heard:

"May 23, 1919.

"Dwight B. Heard, Phoenix, Arizona. Mr. Harris in San Diego today will answer your wire tomorrow upon his return. If carload Hereford heifers have not been sold please advise by wire promptly. Lassen priced them to us at eighty dollars f.o.b. Phoenix. Please verify this.

"F. F. STONEROD."

Heard answered as follows:

"Phoenix, Ariz. May 24, 1919.

"F. F. Stonerod care C. B. Harris Co., Haas Bldg. Los Angeles, Calif. Yours received hope hear from Harris today are prepared deliver twenty heifers eighty dollars f.o.b. Phoenix these are all the heifers you inspected await reply may be Los Angeles if so can confer with Harris.

"DWIGHT B. HEARD."

Pursuant to the last sentence therein Heard went to Los Angeles, and there was an interview between him and Harris on May 26th, at the office of the latter. After this interview Heard sent the following telegram:

"May 26, 1919.

"Lars Lassen Superintendent Bartlett-Heard Ranch, Phoenix, Arizona. Have advised Harris that if it is absolutely necessary will hold white face heifers sold to him until June fifth. He will try however to ship by June first.

"DWIGHT B. HEARD."

Stonerod went to defendant's ranch to get the heifers, and when he arrived found twenty ready for delivery, which he claimed were not the ones purchased, but an inferior lot, and refused to accept them. He wired for Harris, who came over and conferred with Heard, but no agreement could be reached; Harris claiming he had purchased one lot, and Heard insisting it was an absolutely different one, admittedly of a much lower grade. It had appeared in the meantime that one of the bulls purchased by Harris had turned out to be a non-breeder, and Harris testified that when Heard was in his office May 26th he told him of that fact, and that he, Harris, had sold the bull to one Crowley for $300, and would have to make it good to him, and that Heard replied, "I will make it good with you. Everything that is sold from the Bartlett-Heard ranch has to be absolutely right in every respect," and that the bull was finally sold for beef for $51.50. Plaintiff and defendant could not reach an amicable settlement of their difficulties, and finally plaintiff brought this action against the Bartlett-Heard Land & Cattle Company and Dwight B. Heard individually, for damages on two counts: First, for failure to deliver the heifers he claimed he had purchased; and, second, for the failure to keep the alleged promise to make good on the defective bull.

The case was tried to a jury which returned a verdict in favor of plaintiff in the sum of $1,007 against the corporation; an instructed verdict being returned for Heard individually. Judgment was duly rendered thereon, and, after the usual motion for new trial was made and denied, defendant appealed.

We will discuss the assignments of error from the standpoint of the legal questions raised. The first is that there never was a valid contract of sale existing between the parties as regards the Hereford heifers. It is not disputed, nay, it is insisted by both parties, that defendant offered to sell some heifers to plaintiff, and plaintiff agreed to purchase some from defendant, the disagreement being, however, absolute as to whether or not they agreed in the office of plaintiff on May 26th upon which heifers were bought and sold. We need not review the evidence on this point, but merely say there is ample testimony in the record to sustain either a finding that the minds of the parties did not meet, or else that they did, according to the view that the jury took of the veracity of the witnesses. The situation is the very common one of two sharply conflicting lines of testimony, one of which has been rejected and the other accepted by the jury, and an appeal to us to substitute our opinion thereon for the conclusion reached by the jury. We have repeatedly and consistently held we would not do so, and we see no reason to disturb our long-established rule at this time. McCord v. McCord, 13 Ariz. 377, 114 P. 968.

The second point is that, admitting the contract was made, it is within the statute of frauds, and there is no sufficient "memorandum of writing" within the meaning of paragraph 5152, R.S.A. 1913 (Civ. Code), to charge the defendant. That the contract is within the statute is not disputed, but plaintiff contends there is sufficient writing to satisfy the statute. The writings upon which he bases this claim are the telegrams quoted above. Are they sufficient under the law? Now no particular form of language or...