Buford v. Lonergan

• Decision Date: 20 August 1889
• Citation: 22 P. 164,6 Utah 301
• Court: Utah Supreme Court
• Parties: MARCUS B. BUFORD AND OTHERS, RESPONDENTS, v. SIMON J. LONERGAN AND ANOTHER, APPELLANTS

22 P. 164

6 Utah 301

MARCUS B. BUFORD AND OTHERS, RESPONDENTS, v. SIMON J. LONERGAN AND ANOTHER, APPELLANTS

Supreme Court of Utah

August 20, 1889

APPEAL from a judgment of the district court of the first district and from an order denying a motion for a new trial. The opinion states the facts.

Affirmed.

Mr. O W. Powers and Messrs. Hall & Marshall for the appellants.

Mr. W H. Dickson and Mr. Charles S. Varian for the respondents.

ANDERSON J. ZANE, C. J., concurred.

OPINION

ANDERSON, J.:

On the seventeenth day of July, 1886, the defendants, by contracts in writing, sold to the plaintiffs all their possessory rights to any and all ranches or ranges then and theretofore held and occupied by them, with all water-rights, fences, and improvements, situated in the counties of Oneida, in Idaho, and Box Elder, in Utah, together with all their herds of cattle then on said ranges, excepting two thousand head of steers previously sold, one thousand of which steers had already been selected and driven away, and the other one thousand to be selected and driven off within ninety days from July 15, 1886. The sale also included six mares, forty-nine saddle horses, and all the wagons, harness, saddles, and other property owned by defendants and used in said ranches. As a basis for estimating the number of cattle sold, and the amount to be paid by plaintiffs, the contract recited that fifteen hundred calves had already been branded in the year 1886, and provided that defendants should continue the branding of calves, the increase of stock then on the range, until December 1, 1886, giving to plaintiffs an opportunity to be present at such branding; the whole number of calves to be branded; including the fifteen hundred already branded, not to exceed twenty-two hundred and fifty, and none to be branded after December 1, 1886, at which time all the property and premises were to be delivered to them; and that the herds should be estimated to contain three head of cattle for every calf so branded, or three times the number of calves branded in the year 1886, prior to December 1st. Plaintiffs were to pay defendants for all the cattle and property purchased from them a sum equal to thirty dollars per head for all the cattle delivered, the number to be ascertained by the number of calves branded. The contract provided for two partial payments, and that the third and last payment should be made when the defendants should finish their branding and deliver all the property sold to plaintiffs. Delivery was made December 10, 1886. Prior to December plaintiffs had paid defendants on the property $ 175,500. On the day of delivery there was still due defendants, according to the number of calves that had been branded, $ 27,000, if all the property was ready to deliver according to the contract. Plaintiffs claim, however, there were four hundred and twenty-two yearling steers, forty cows, heifers and steers, and two buggy horses, which were on the ranches when they purchased, but which could not be delivered, of the aggregate value of $ 14,110, which amount they claimed the right to deduct from the amount to be paid. Defendants, however, refused to make delivery of any of the property sold under the contract, unless the full amount should be paid. Whereupon plaintiffs, having no means of obtaining possession of the property except by litigation, paid the full $ 27,000 under protest, and brought this action to recover the $ 14,110 paid for the property to which they claimed to be entitled but had not received. The cause was tried by a jury, resulting in a verdict and judgment in favor of plaintiffs for $ 6,631.63, and the defendants appealed to this court. The contention at the trial in the district court was as to whether plaintiffs were entitled to have delivered to them all the yearling steers which were on the ranches at the date of the July contract, and whether parol evidence was admissible for the purpose of showing what classes or ages of steers defendants had previously sold, to be reserved out of the herds, and whether plaintiffs could recover the value of any property paid for, but not delivered to them, as having been paid under duress. The plaintiffs alleged in their complaint that it was understood at the time of making the written contract, by all the parties thereto, that the one thousand head of steers reserved from the sale were steers of a certain class--two years old and upwards. The defendants, by their answer, denied there was any such understanding, and alleged that it was understood by all the parties that the one thousand steers reserved included yearlings and steers of all ages. The defendants contended that, the contract being plain and unambiguous and susceptible of a legal construction, parol evidence was not admissible to explain, vary, or contradict its terms, and that, as the contract provided that the herds should be estimated to contain three head of cattle for every calf branded, plaintiffs were bound by this provision, and that it made no difference whether the one thousand steers reserved and to be taken out were of the ages of one year, or of two years and upwards. Plaintiffs were permitted to introduce evidence, against the objection of defendants, tending to show that the one thousand steers reserved were steers which had been previously sold to one Hawkes by defendants, and were of the age of two years old and upwards, and that this fact was understood by all the parties to the contract, and this ruling is assigned as error.

The rule that "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument," does not exclude evidence of extrinsic facts necessary to a full understanding of the meaning of the parties. "It is directed only against the admission of any other evidence of the language employed by the parties in making the contract than that which is furnished by the writing itself. The writing, it is true, may be read by the light of surrounding circumstances in order more perfectly to understand the intent and meaning of the parties; but, as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it or substituted in its stead." 1 Greenl. Ev. Sec. 277. The same author says: "If the language of the instrument is applicable to several persons, to several parcels of land, to several species of goods, to several monuments or boundaries, to several writings, or the terms be vague and general, or have divers meanings, * * * in all these and the like cases parol evidence is admissible of any extrinsic circumstances tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect." Id. Sec. 288. Thus, where the agreement was for a certain number of casks of black lead, parol evidence was held admissible to show what kind of casks was intended. Keller v. Webb, 125 Mass. 88. So...