Casey v. Musgrave

• Decision Date: 06 February 1956
• Docket Number: No. 3798,3798
• Citation: 292 P.2d 1066,72 Nev. 31
• Parties: John Jay CASEY, Appellant, v. Robert E. MUSGRAVE, Respondent.
• Court: Nevada Supreme Court

Page 1066

292 P.2d 1066

72 Nev. 31

John Jay CASEY, Appellant, v. Robert E. MUSGRAVE, Respondent.

No. 3798.

Supreme Court of Nevada.

Feb. 6, 1956.

William J. Crowell, Carson City, Leslie E. Riggins, Reno, for appellant.

Stewart & Horton, Reno, for respondent.

MERRILL, Chief Justice.

This is an action brought by respondent as plaintiff for the reasonable value of services rendered to defendant at defendant's instance and request. Judgment for the plaintiff in the sum of $31,000 was rendered pursuant to jury verdict and the defendant has taken this appeal from judgment.

Appellant's first contention is that the action is barred by res judicata.

The services in question were rendered from May through August, 1948. Defendant was contemplating the purchase of ranch and range property and cattle in Nye County. Plaintiff operated a cattle sales yard in Fallon, Nevada, and was experienced in the appraisal and sale of cattle. The services rendered by plaintiff included appraisal of cattle and ranch property. As a result of these services defendant bid for purchase of the ranch and his offer was accepted. Thereafter plaintiff's services included the rounding up and sale of cattle. As a result of these services defendant was enabled to realize the purchase price of the ranch. In 1949 an action was brought by plaintiff against defendant to establish a partnership in the ownership and operation of the ranch and to secure an accounting as to partnership assets. This action resulted in judgment for defendant upon the ground that proof of an agreement to enter into partnership had not been established. This judgment was affirmed upon appeal to this court. Musgrave v. Casey, 68 Nev. 471, 235 P.2d 729. Thereafter in June, 1952 the present action was commenced.

Appellant contends that the cause of action in the first suit was identical with the cause of action in the case at bar under the tests set forth by this court in Reno Club v. Harrah, 70 Nev. 125, 260 P.2d 304. In both cases, it is contended, there is identity of subject matter, of the primary right of the plaintiff and duty of the defendant and of the facts from which these matters arose. Therefore, it is argued upon the authority of the Reno Club opinion, the judgment in the first case operates as a bar to the instant case.

It is not enough, however, that the same circumstances and transactions have, in general, given rise to both cases. The former action was based upon an alleged express contract which by its terms determined the primary right of the plaintiff and duty of the defendant. Those rights and duties related not simply to compensation for plaintiff's services but involved the relationship of partners in the ranch enterprise. Our opinion in the former case expressly states, 68 Nev. 471, 481, 482, 235 P.2d 729, 734, 735, 'The trial court in rendering its opinion in favor of the defendant stated the conviction that there was not sufficient evidence to establish that there ever was a partnership or joint adventure created between the parties. This appears to us to be the true issue. The question is not whether plaintiff is entitled to compensation for his services rendered in connection with the raising of the purchase price. The question is whether any contract ever was reached which created a joint adventure.' It cannot, then, be said that the former case constituted an adjudication of the right of plaintiff to recover compensation for his services or that plaintiff in this action seeks simply a new remedy upon the same cause of action.

Gall v. Gall, 17 App.Div. 312, 45 N.Y.S. 248, 251, 252, involved a similar situation. There the court stated, 'The cause of action in the first case was for the specific performance of an agreement to make a will. The question presented was whether such an agreement had been made by Joseph Gall. Upon that question the rights of the parties depended. The fact of the rendition of services was material only as it afforded a consideration which would be, in equity, sufficient to compel the specific performance of such an agreement if it had been made, but in all other respects the fact of the rendition of the services was entirely immaterial. Nor was the value of those services material in any respect whatever. * * * In the second action, however, the services themselves, and their rendition, lay at the basis of the action.' To the same effect is O'Meara v. McDermott, 43 Mont. 189, 115 P. 912; followed in Gaspar v. Buckingham, 116 Mont. 236, 153 P.2d 892.

The bar of res judicata does not apply.

Appellant next contends that plaintiff in bringing his former action conclusively elected his remedy and may not now assert a right to an inconsistent alternative remedy. The rule is stated in Robertson v. Robertson, 43 Nev. 50, 59, 180 P. 122, 124, 187 P. 929, as follows: "An election once made, with knowledge of the facts, between co-existing remedial rights which are inconsistent, is irrevocable and conclusive, irrespective of intent, and constitutes an absolute bar to any action, suit, or proceeding based upon a remedial right inconsistent with that asserted by the election, or to the maintenance of a defense founded on such inconsistent right."

This is not a proper case for application of that rule, however. The alternative remedies did not coexist under the true state of facts. Facts which would support the existence of one remedy would preclude the existence of another. Plaintiff simply proceeded under a mistake of fact in assuming a meeting of the minds of the parties to have occurred upon a partnership contract. O'Meara v. McDermott, supra; Marsh v. Masterson, 101 N.Y. 401, 5 N.E. 59. See Restatement of the Law, Judgments, § 65, Subsection (2), Comment (g), p. 276. Accordingly we hold this contention to be without merit.

Appellant next attacks the jury's award of damages as excessive and without evidentiary support. Damages were allowed in the sum of $20,000 for services, $8,000 for use of trucks, and $3,000 for use of a private automobile.

In this connection appellant contends that there is no proof to establish the value of the services performed by respondent; that respondent's opinion as to value has no evidentiary weight whatsoever since it is based upon a formula not shown to have any customary or reasonable relation to the services rendered.

Respondent's testimony as to the reasonable value of his services was to the effect that a conservative figure would be $21,000 being ten per cent of cattle sales totaling $210,000. Upon cross-examination it was established that since he had been proceeding upon the assumption that he was a partner in the enterprise respondent had kept no record of the specific services performed or of the time spent in their performance.

There is, however, no question but that extensive services of value had been performed, nor as to the nature of those services. They covered a period of three full months. They related, first, to sales of cattle, including an auction sale. In this respect they went far beyond the services ordinarily performed by a cattle auctioneer (whose commission, respondent testified, customarily is three per cent of sale proceeds where the sale is conducted upon the auction lot or five per cent where conducted upon the cattle's home ranch). They included a multitude of details relating to the preparation for sale, gathering, sorting and classifying of cattle from all parts of the extensive desert range which comprised the Butler Ranch, construction of corrals, preparation of scales, feeding of those who attended the sale, all of which required the employment of 15 persons in addition to the services of respondent himself. The resulting auction realized $78,000. The services related also to the successful purchase of the Butler Ranch by the appellant, through appraisal of cattle and ranch property and advice as to bid and as to methods by which, through cattle sales, the terms of that bid might be met.

Appellant's...