Case v. Kramer

• Decision Date: 21 April 1906
• Citation: 85 P. 878,34 Mont. 142
• Parties: CASE et al. v. KRAMER.
• Court: Montana Supreme Court

85 P. 878

34 Mont. 142

CASE et al. v. KRAMER.

Supreme Court of Montana

April 21, 1906

Appeal from District Court, Dawson County; C. H. Loud, Judge.

Action by W. E. Case and another, copartners as Case & Truscott against M. L. Kramer. From an order granting a new trial after verdict and judgment for defendant, he appeals. Affirmed.

Geo. W Farr and O. F. Goddard, for appellant.

T. J Porter and Sydney Sanner, for respondents.

BRANTLY C.J.

This action was brought to recover damages for the breach of a written contract, under the terms of which, it is alleged defendant on November 27, 1899, sold to plaintiffs, as copartners, certain cattle and agreed to deliver them at any time from May 1 to 15, 1900, at a designated place in Dawson county. It is alleged by plaintiffs that they negotiated the contract with defendant through one Courtney, defendant's agent, duly empowered to act in that behalf; that they made a cash payment of $5,000 required by its terms, which was received and retained by the defendant; that they were ready and able to make payment of the balance of the purchase price at the time and place of delivery, as well as to comply with all the terms and conditions of the contract to be by them performed; but that defendant failed to perform the contract on his part by refusing to deliver the cattle at the time and place agreed upon, or at all, to the plaintiffs' damage in the sum of $15,000. A copy of the contract is set forth in the complaint. It recites the different classes of cattle sold and the price per head to be paid for each class, and includes all the cattle bearing the brands of the defendant at the date of its execution, "with the calves thrown in and not to be paid for." The receipt of $5,000 in cash is acknowledged. The answer is a general denial. A trial upon the issues thus presented resulted in a verdict and judgment for defendant. By a general order the court granted plaintiffs' motion for a new trial. From this order the defendant has appealed.

The grounds of the motion are errors of law in rulings upon the admission and exclusion of evidence, and in instructing the jury, and insufficiency of the evidence to justify the verdict. Since the order does not designate upon which of the grounds mentioned it was made, it must be affirmed if justified by any one of them. Respondents insist that the granting of a motion for a new trial rests entirely in the discretion of the trial court, and that for that reason the order appealed from should be affirmed. For errors at law prejudicially affecting the rights of the movant, a new trial may be demanded as a matter of right. In such case the court has no discretion, if the error is made manifest. State v. Schnepel, 23 Mont. 523, 58 P. 868. When the ground is newly discovered evidence or insufficiency of the evidence to justify the verdict, the motion is addressed to the discretionary power of the court, and its action in the premises will not be disturbed by the appellate court unless it appears that there has been a clear abuse of this power. State v. Schnepel, supra; In re Colbert's Estate, 31 Mont. 477, 78 P. 971, 80 P. 248; Gillies v. Clarke Fork Coal M. Co., 32 Mont. 320, 80 P. 370; Hamilton v. Nelson, 22 Mont. 539, 57 P. 146; Harrington v. Butte & Boston M. Co., 27 Mont. 1, 69 P. 102; Rand v. Kipp, 27 Mont. 138, 69 P. 714; State v. Landry, 29 Mont. 218, 74 Pac.

418. An examination of the record reveals the fact that upon every issue presented by the pleadings, the evidence introduced at the trial involves an irreconcilable conflict. For this reason alone, we are of the opinion that the order of the district court was properly made.

It appears from the testimony introduced by the plaintiffs, that during the latter part of August, 1899, the defendant, being desirous of closing out his cattle interests in Dawson county, went to one William Courtney, a broker in Miles City Custer county, and listed his stock with him for sale, stating to him the character of the different classes of cattle he had and the prices he asked. He thereupon dictated a circular letter, to be addressed by the broker to various persons who might desire to buy his cattle, stating the terms upon which he wished to sell. Among other things, this circular letter stated the number of steers of various ages owned by the defendant, and also of cows and heifers. It also stated that there had been branded the preceding spring 144 calves, that there would probably be branded that fall 50 or 60 more, and that under the terms of the sale the calves would be thrown in. A cash payment of $5 per head, amounting to $5,000, was required. The place of delivery designated was Miles City stockyards. He thereupon went to his home, some 125 miles away, in Dawson county. In the meantime, and prior to November 24th, there was some correspondence between himself and Courtney as to the sale of the cattle; and on or about November 13th Courtney wrote the defendant that he had possibly secured a purchaser for his cattle to be delivered at a designated place in Dawson county on or about May 15th, upon the conditions and at the prices fixed by the defendant. On November 24th the defendant went to Miles City and saw Courtney. According to Courtney's statement, he was then told by the defendant to close up the sale. On leaving Miles City the defendant met plaintiff Case a short distance from the town, and, in a conversation then had with him with reference to the purchase of the cattle, told him to go to Courtney and buy the cattle. On November 27th, after negotiations between Case and Courtney extending over two or three days, Case bought the cattle at the stipulated price and paid the $5,000 required by the defendant. This he paid to Courtney by his check, which was afterwards deposited by Courtney in one of the banks in Miles City and paid to the credit of the defendant. The memorandum set forth in the complaint was then drawn by Courtney and signed by the plaintiff Case on behalf of himself and his coplaintiff, and by Courtney for the defendant. Courtney immediately notified the defendant by mall, enclosing a copy of the contract. So the matter stood until about December 29th. The defendant then visited Miles City and called on plaintiff Case. Referring to the contract of sale entered into by Courtney in his behalf, he said to Case that he would not deliver the cattle under the terms of the contract, unless...