Bitterman v. Reinfeld

• Decision Date: 25 June 1953
• Docket Number: No. 9355,9355
• Citation: 59 N.W.2d 548,75 S.D. 73
• Parties: BITTERMAN v. REINFELD et al.
• Court: South Dakota Supreme Court

Page 548

59 N.W.2d 548

75 S.D. 73

BITTERMAN v. REINFELD et al.

No. 9355.

Supreme Court of South Dakota.

June 25, 1953.

Danforth, Bleeker & Carlson, Mitchell, Wm. H. Glynn, Parkston, for plaintiff and appellant.

Stewart Sharpe, Delmont, L. E. Navin, Mitchell, for defendants and respondents.

SICKEL, Judge.

This is an action in claim and delivery. On February 6, 1948, Ferdinand G. Bitterman, the plaintiff, and Grant Reinfeld and Ray Reinfeld, defendants, entered into a written contract whereby plaintiff agreed to leave with defendants 37 head of cattle. It was provided by the agreement that all the calves were to be kept by defendants until they attained the weight of 600 pounds, when settlement was to be made on a fifty-fifty basis. The term of the contract expired on December 24, 1948. On the expiration of the term the parties continued to operate under the contract until December 24, 1950. Prior thereto and on December 14, 1950, plaintiff notified defendants that the contract would be terminated on December 24, 1950, unless a new contract should be made. The parties were unable to agree on the terms of a new contract, as demanded by plaintiff, and thereupon plaintiff demanded the return of the cattle with one-half of the calves. Full settlement, including the division of the calves, was made between the parties as of December 24, 1950. Thereafter the cattle were left with defendants until April 18, 1951, during which time negotiations for a new contract were carried on. Also during this period defendants kept the cattle as before and 17 additional calves were born to the cows. On April 18, 1951, plaintiff commenced proceedings in claim and delivery and the sheriff took into his possession 46 head of cattle and 17 calves, and delivered them to plaintiff. Plaintiff based his right to possession upon the claim of ownership to all the cows and all of the 17 calves. Defendants answered alleging that the transaction constituted a joint adventure which had not been terminated or settled, and that therefore plaintiff was wrongfully in exclusive possession of the cattle. Defendants also alleged a counterclaim for keeping the cattle during the year in which they had no calves, in the amount of $200; for overweight on one steer, $15; overweight on 9 head of cattle, $201; personal taxes paid by defendants, $133.68; a half interest in the 17 claves born after December 24, 1950, $637.50; care of 16 cows with calf, $800; veterinary fees paid by defendants, $125.

The court decided that the original written agreement was continued by mutual consent of the parties for an additional term of two years, and that the parties had a full settlement according to contract for the entire term of its operation to December 24, 1950; that the defendants were the owners of an undivided one-half interest in the 17 calves born after December 24, 1950, and before the seizure in claim and delivery. The judgment awarded the plaintiff possession of all the cows and half of the 17 calves and awarded defendants the other half of the 17 calves or their value in the sum of $552.50. Plaintiff appealed, but there is no cross-appeal by defendants. The only issue presented on this appeal is whether the court erred in awarding to defendants a half interest in the 17 calves born after December 24, 1950, or their value.

The circuit court found that at a pretrial conference the parties stipulated that the contract created a joint enterprise as to the increase of the cattle, and decided that, by reason of the conduct of the parties, the contract was in full force and effect until the time of seizure. While the plaintiff does not dispute the stipulation he says that the court erred in concluding that the...