Beckwith v. Talbot

• Court: Colorado Supreme Court
• Writing for the Court: BRAZEE, J.
• Citation: Beckwith v. Talbot, 2 Colo. 639 (Colo. 1875)
• Decision Date: 01 February 1875
• Parties: BECKWITH v. TALBOT.

2 Colo. 639

BECKWITH v. TALBOT.

Supreme Court of Colorado

February, 1875

Appeal from District Court, Pueblo County.

THE issue is stated in the opinion. At the trial plaintiff (appellee) was first called as a witness and was proceeding to state a contract made October 7, 1870, substantially as in the writing of that date, which is set out in the opinion when the defendant objected that this was within the 12th section of the statute of frauds, and the court sustained the objection, but allowed the plaintiff to prove service performed according to the agreement under the common count which was found in the original declaration. Afterward, the plaintiff testified that he and his associates had fully performed the agreement by herding and caring for the cattle as therein specified, and the court then ruled that evidence of the contract was admissible upon the question of damages. Counsel for defendant then produced the writing, dated October 7, 1870, and asked the following:

'Q. Is this [handing witness a writing] the agreement which was entered into between yourself and the Beckwith boys on the one part and the defendant upon the other, and about which you have been testifying, and upon which you ask to recover in this action? 'A. It is.

'Q. Does that writing express the exact terms of the said contract?

'A. It does.'

At defendant's request the writing so identified was then given in evidence to the jury by plaintiff, as stated in the opinion. Defendant then asked the following question:

'Q. Is the name, C. W. Talbot, signed to this instrument, your signature?

'A. It is, and that is the contract referred to, and the only contract.'

The examination of plaintiff was then resumed by his own counsel, and they were permitted to ask:

'Q. Did Geo. C. Beckwith assent to and accept the terms of said contract?'

To which the witness answered: 'A. He assented to said contract, and under said contract I acted.'

Much evidence was given as to the number and value of the cattle mentioned in the agreement, and upon this point plaintiff produced a tax schedule which, at the head, bore the figures, 1872, and upon its face appeared to be a schedule of the real and personal property of defendant, and was sworn by Edwin F. Beckwith, one of defendant's sons. Elton Beckwith, another son of the defendant, testified that he made the schedule by authority of defendant, and that he was defendant's agent. Defendant objected that the schedule was not made by himself, nor did it appear that he had knowledge of its contents, and that it was irrelevant, which objection was overruled, and defendant excepted. Defendant afterward testified that he did not authorize the making of such schedule. Several letters written by defendant to plaintiff were put in evidence, of which two are given in the opinion. It was shown that the cattle ranged over a large country, in the Wet Mountain valley, some of which was claimed by defendant, but the greater part was public land; that the cattle were in this locality at the time the contract was made, and were kept there during the contract, and remained there at the expiration of the contract in the possession of Edwin F. and Elton T. Beckwith, who were parties to the contract, and sons of defendant. Plaintiff testified that there was no understanding as to delivering the cattle at expiration of contract. Defendant testified that he understood that the cattle were to be delivered to him. Upon this point defendant prayed an instruction, which was refused, that if the cattle were to be redelivered, and this was not done, the plaintiff could not recover. The court charged upon the question of damages, as stated in the opinion. Upon motion for new trial the verdict was regarded by the court as excessive, and the plaintiff was required to remit $1,324.60, which he accordingly did, and judgment was entered for $4,113, and defendant appealed.

Messrs. CHARLES & PHELPS and Messrs. PATTERSON & THOMAS, for appellant.

Mr. HUGH BUTLER, for appellee.

BRAZEE J.

This is an action of assumpsit, commenced by summons, on the 12th of May, 1873, by the appellee against the appellant. A declaration was filed on the 16th of May, 1873, containing four counts, three of which were special counts for the breach of an express contract, and the fourth a common count for work and labor. The first and third counts were held bad on demurrer. On the 31st of May, 1873, the plaintiff filed an amended declaration, which contained only two counts, both special, for the breach of an express contract, to which the defendant plead the general issue. On the 12th of June, 1873, the plaintiff obtained leave to file, and filed, a second amended declaration, containing only two counts, both special, for the breach of the contract hereinbefore referred to, to which the defendant plead the general issue with notice of special matter, to the effect that the subject-matter of the plaintiff's special claim was a partnership transaction between the plaintiff, Elton T. Beckwith and Edwin F. Beckwith, and appellant, and the same was unsettled. The trial below proceeded upon the theory that the common count was in the declaration, but, under the view we take of this case, it is wholly immaterial whether it stood with the special counts, or had been superseded by them.

The agreement declared on in the special counts was produced by the defendant at the trial, and by him was put in evidence, and is as follows:

'WET MOUNTAIN VALLEY, October 7, 1870.

'This is to certify, that the undersigned have taken two thousand two hundred and five head of cattle, valued at 36,681.60, on shares, from George C. Beckwith, time to expire on the 5th day of December, 1872, then Geo. C. Beckwith to sell the cattle, and retain the amount the cattle are valued at above. Of the amount the cattle sell at, over and above the said valuation, Geo. C. Beckwith to retain one-half, and the other half to be equally divided between C. W. Talbot, Elton T. Beckwith and Edwin F. Beckwith.

(Signed.)

'C. W. TALBOT.

'ELTON T. BECKWITH.

'EDWIN F. BECKWITH.'

Elton T. Beckwith and Edwin F. Beckwith were the sons of George C. Beckwith, one of whom, at the defendant's request, wrote the agreement, and after it was signed by the three other parties to it, the defendant took possession of the document, and retained it until the time it was produced and put in evidence on the trial by him. Four letters from the defendant to the plaintiff were put in evidence, all of them referring to the cattle, and two of them to the agreement, and are as follows:

'DENVER, September 21, 1872.

'MR. TALBOT-Sir: On my arrival from the mountains, I received your letter. As I have wrote you before, every day I see parties here that is offering their cattle very low, as the hard winter has discouraged them, and that is the cause that cattle is so very low. There is now in the cattle in the valley, about $25,000, and I am frank to say that as the market looks, they cannot be sold for more than that sum. I have used every exertion for the last three months to sell. I engaged a man to sell them, and agreed to give him $1,000 to make sale of them, and he has written east, and advertised and tried to sell, without success. You suggest giving you a part of the cattle. That is entirely outside of the agreement. Also, where would be the interest put in the cattle coming from; and also Elton and Edwin would be glad to do the same, but at that rate, I would not get my money back I put into the cattle. The cattle must be sold, and settled up, according to the agreement. I will do every thing I can, to sell at the best advantage, and you shall have every chance to get a purchaser for the cattle, so as to make the most out of them. I shall not give up the range; as when the cattle is sold, I can buy three thousand head of stock cattle, from four year olds, cows, two year olds, and yearlings, for $12 a head, mostly large cattle, and I shall do so and put them on a range and see if I can't make up part of what I shall lose in the cattle we now have. You shall have no chance to complain in my keeping up to the agreement, as I shall strictly; although I have heard you have made complaints to parties, which I think is very unfair, and the parties you told so, said so too. Therefore, I am determined to give you no reasonable cause of complaint, although I shall be willing to leave it to any person. If on the other hand, I had not reason to complain when you worked yourself out of coming up with the cattle, while we were out in sleet and rain, and out all night in rain storms, and running our horses while they lay down in the road and died, you was to home taking your comfort. I think that looks little like cause for complaint. Also you employed the poorest men and boys to herd for you. I should not of mentioned this, or made any complaint, if I had not heard of your talk. As there will be a large loss in the cattle to me, I should make the best of it, and as I have reason to believe there will be a big loss in the cattle falling short in count, by losing, strays, and stealing and other ways.

'Yours, respectfully,

'GEO. C. BECKWITH.'

'DENVER, November 10, 1872.

'MR TALBOT-Sir: At first I thought it useless to answer your letter, as I am bound by the agreement, to sell the cattle in a very short time; that to commence pulling them out, and of the most desirable in the herd, and suppose I sold this thirty, then thirty and fifty more, until all the most desirable was sold, and at last, which would probably be months, and the balance would not bring enough to make the $31,000 I am offered. Who would be the greatest loser then? I would lose $30 to your $1, and by your movements when I was in the valley, that...