Bissinger & Co. v. Weiss

• Citation: 27 Wyo. 262,195 P. 527
• Decision Date: 14 February 1921
• Docket Number: 986
• Parties: BISSINGER & CO. v. WEISS
• Court: United States State Supreme Court of Wyoming

195 P. 527

27 Wyo. 262

BISSINGER & CO. v. WEISS

No. 986

Supreme Court of Wyoming

February 14, 1921

ERROR to the District Court of Sweetwater County; HONORABLE VOLNEY J. TIDBALL, Judge.

This was an action on account by Bissinger & Co., a corporation against Max Weiss and others. There was a judgment for plaintiff for a less amount than demanded, and plaintiff brings error. The material facts are stated in the opinion.

Affirmed.

T. S Taliaferro, Jr., and W. A. Muir, for Plaintiff in Error.

The trial court erred in allowing defendants to amend their answer, thus changing their defense of express contract for goods at a stipulated price, to one upon implied contract for goods at a reasonable market value; there being no evidence or proof to support the amendment. The best evidence should be adduced to prove every disputed fact. (Jones, Vol. 1 Section 200.) Plaintiff's book account was made up daily at the time of the transaction and was the best evidence (Roben v. Brown, 15 So. 598.) There was an abuse of discretion in requiring defendants to amend their answer; testimony of a witness taken from a Chicago price bulletin was incompetent, not being based upon the quality of the goods involved in this action. The burden of proof in view of the amendment, was upon defendants. (Meikel v. State Sav. Inst. 36 Ind. 355 Ency. Evidence, Vo. 2; 808.) There was a total disregard of the comparative quality and value of the goods delivered by defendants and their relation to the values which they sought to establish.

Frank Yates, for Defendants in Error.

The trial court did not abuse its discretion in permitting defendants to amend their answer to conform to plaintiff's proof, the amendment being permitted in furtherance of justice, 4437 Comp Stats. 1910. The contention of plaintiffs that the entries made upon the books are the best evidence of the market price of the merchandise delivered to plaintiff by defendants is untenable. If such were the rule, plaintiff could fix a price by a mere entry in its books, irrespective of market conditions. The evidence showed that there was an agreement between the parties as to how the prices of the goods should be arrived at; the evidence showed a variation in the quality and grade of wool, pelts, hides, tallow, etc., and also in market prices thereof. Exception is also taken to the rendition of judgment outside the county of Sweetwater, Section 912, C. S. 1910 authorizes judges to hold court out of their district, and Section 4463 C. S. defines the jurisdiction of district judges and chambers during vacation. The point is clearly settled in the case of Estadello v. Security Trust Co., (Cal.) 109 P. 884. The signing of the journal entry outside the county did not invalidate the judgment.

KIMBALL, Justice. Potter, C. J., concurs. Blydenburgh, J., did not sit, and the writer of the opinion, then District Judge, sat in his place. The late Chief Justice Beard had concurred in the conclusions stated in the opinion, but died before its completion.

OPINION

KIMBALL, Justice.

Plaintiff, Bissinger & Co., a corporation, was engaged in the hide, pelt and wool business in Salt Lake City, Utah, and defendants, Max Weiss and Morris Weiss, co-partners, were engaged in a smaller way in a similar business at Rock Springs, Wyoming. Between November 1, 1917 and August 1, 1918, the plaintiff advanced to defendants various sums of money and the defendants delivered to plaintiff many shipments of merchandise, consisting of hides, pelts, etc. Charges against defendants for the moneys advanced to them, and credits for the merchandise delivered by them to the plaintiff, made up the account upon which the plaintiff sued, claiming a balance due of $ 4,796.77. There was no dispute between the parties, either as to the amount of money advanced by plaintiff to the defendants, or as to the weight and number of articles of merchandise delivered to the plaintiff by the defendants, so that the sole point in issue was the value or prices of said articles of merchandise for which the defendants were entitled to credit. Trial was to the court without a jury, and upon general findings in favor of the plaintiff, judgment was in its favor for $ 2,704.31 and interest, which was about $ 650 more than the defendants admitted to be due. The plaintiff brings error.

The answer, as it stood when the trial began, alleged that the deliveries of merchandise by defendants to plaintiff "were made under express contracts and agreements between plaintiff and defendants, as to the prices of the goods so sold and shipped by defendants to plaintiff;" that certain "specific items in said account are erroneous and not correct, and are not priced according to the agreement made between plaintiff and defendants in regard thereto." The items thus referred to as erroneous are then set forth with a statement of the amounts which the defendants claim they should have been credited therefor upon the account.

At the trial, the first witness for the plaintiff was John McCarty, its manager. After his direct examination had been concluded, and during his cross examination, the defendants' attorney asked leave of the court to amend the answer to conform to plaintiffs' proof by alleging that the defendants were entitled to receive credit for the market value of the goods shipped to plaintiff by defendants. Over objection, leave to amend was granted, and later, after trial but before judgment, the amended answer was filed, changing the allegations hereinbefore quoted of the original answer. In lieu of those allegations, the amended answer stated that the deliveries of merchandise "were made under an express understanding and agreement that plaintiff should pay defendants for all such goods * * * the fair market value * * * at the time of such sale and delivery;" and that in the account "the defendants are not credited with the fair market value of many of the items." Then, as in the original answer, the items claimed to be erroneous are set forth with a statement of the amount claimed by defendants to be the market value of the goods described in each item.

It is contended by plaintiff in error that the amendment should not have been permitted for the reason that the allegations thereof in regard to the agreement for payment of the market value for the goods delivered to plaintiff were not supported by the evidence. As the plaintiff's witness, McCarty, was the only witness who testified upon this subject, it is necessary to determine whether or not the trial court erred in finding that his testimony supported those allegations of the amended answer. This witness repeatedly stated that the prices entered upon the plaintiff's books for the articles received from the defendants were the market prices and that such market prices were in every instance fixed when the goods were received by plaintiff by agreement between him, acting for the plaintiff, and one or the other of the defendants. This testimony standing alone would have shown an express contract as to each credit on the account, and perhaps have rendered immaterial any inquiry as to the true market value of the goods. But other testimony of the same witness tended to contradict him in that regard and to prove that the prices entered upon the books were fixed by him, acting for the plaintiff, without the approval of either of the defendants. He insisted that, at the beginning of the dealings, there was no arrangement at all in regard to prices to be allowed for the goods in question, but later said that the defendants were "supposed to get the market price," and that "it was the policy of Bissinber & Co. always to pay the market prices." On cross-examination, after many questions in regard to how and for whom he had fixed the prices of the goods, he was asked if he did not price them without the consent of either Max or Morris Weiss, and answered, "Yes, just for Bissinger, see?" On re-direct examination, with the obvious purpose of clearing up the testimony of the witness upon this subject, he was asked how the plaintiff and defendants arrived at the market prices as allowed in the account, and in his answer he described the method by which he obtained knowledge of the market prices, without making any reference whatever to any express agreement in regard thereto. In referring to statements of the account which had been sent to the defendants, he stated that they claimed "something different," and that on July 2, 1918, after the account had run some eight months, a written memorandum was signed by both defendants and by the witness, evidently acting for the plaintiff. This memorandum recited that Morris Weiss agreed to accept, from the plaintiff for all merchandise sold to it, prices to be figured on the basis of prices paid to Max Weiss for goods sold by him to the plaintiff, "according to the prevailing market prices at the time of sale and delivery * * * the difference in prices to be paid by either Bissinger & Co. or Morris Weiss, whichever way the balance goes, after the account is figured." The witness distinctly stated that this was an agreement by which they were to arrive at the prices of the...