Coury Bros. Ranches, Inc. v. Ellsworth

• Decision Date: 01 November 1968
• Docket Number: No. 8524,8524
• Parties: COURY BROS. RANCHES, INC., an Arizona corporation, Appellant and Cross-Appellee, v. Kenneth L. ELLSWORTH and Doris Fay Ellsworth, husband and wife, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 458

446 P.2d 458

103 Ariz. 515

COURY BROS. RANCHES, INC., an Arizona corporation, Appellant and Cross-Appellee, v. Kenneth L. ELLSWORTH and Doris Fay Ellsworth, husband and wife, Appellees and Cross-Appellants.

No. 8524.

Supreme Court of Arizona, In Division.

Nov. 1, 1968.

Snell & Wilmer, by Mark Wilmer, and Thomas E. Parrish, Phoenix, for appellant and cross-appellee.

Conway T. Ryan, Chandler, and Charles A. Filler, by Charles A. Filler, Phoenix, for appellees and cross-appellants.

STRUCKMEYER, Justice.

This action was brought by Coury Bros. Ranches, Inc., an Arizona corporation, against Kenneth L. Ellsworth and Doris Fay Ellsworth, husband and wife, for the unpaid balance due under a pasturage contract entered into with Kenneth L. Ellsworth. The Ellsworths admitted the execution of the contract, alleged a breach by Coury and counterclaimed for damages arising out of the breach. After the trial the jury in answer to interrogatories found that the Ellsworths suffered damages through loss of sheep as a result of the failure on the part of Coury to carry out the terms of the contract and that the amount of damages thereby suffered was $15,947.50. It also found that the Ellsworths were required to obtain other pasturage by reason of the breach and that the expenses so incurred were $3,869.25. Total damages were thus found to be $19,816.75. On the instruction of the court that any verdict in favor of the defendant was to be reduced by the sum of $5,000.00, the amount of the last payment due Coury on the contract, the jury returned a general verdict of $14,816.75 in favor of the Ellsworths.

The trial court, pursuant to Rule 59(i), Rules of Civil Procedure, 16 A.R.S. ordered a remittitur of $8,111.29, an amount the court believed excessive principally for asserted lamb losses. The remittitur was conditional in that, if the Ellsworths accepted, the Coury motion for new trial would be denied but if not accepted, a new trial would be granted limited to the question of damages for the lamb losses. The Ellsworths did not accept the remittitur.

Coury has appealed from the judgment entered on the jury's verdict and the order denying its motion for new trial as to the entire case. The Ellsworths have cross-appealed from the order granting a new trial on the issue of lamb losses damages and for the further reason that the court below erred in failing to award them reasonable attorneys fees.

The contract, as drafted by the office manager for Coury, provides:

'CONTRACT AGREEMENT

'Kenneth L. Ellsworth, of 657 West Toledo, Chandler, Arizona, contracts with Coury Bros. Ranches, Inc., of 270 Valley National Bank Bldg., Mesa, Arizona, as of October 16, 1961, to pasture sheep on the following pastures of Coury Bros. Ranches at Magma, Arizona, as of this date to February 11, 1962:

'in Township 3S R8E, Sec. 9, the south one-half of Field #5--S and all of Field #6--S; also all of Field 1--N of Sec. 10; and also all of Field #14--S and 15--S of Sec. 15; and in Township 3S, R9E, Sec. 30, the south half of Field #31--N, and all of Field #32--N; plus such other pastures planted to barley and wheat.

'Said acreage to include approximately 475 acres of alfalfa to be pastured from date of contract to February 1, 1962, and approximately 500 acres of barley and wheat with sufficient growth for one pasturing extending into the month of February, 1962 if necessary in order to ensure the sufficient growth for one pasturing. Coury Bros. also to agree to furnish one irrigation during this period.

'Kenneth L. Ellsworth and Coury Bros. agree mutually to cooperate in this pasturing program to allow the plowing of alfalfa commencing February 1st through the month of February, 1962.

'Said Kenneth L. Ellsworth agrees to pay a total of $15,000.00 for the pasturing of his sheep on the above pastures, with $5,000.00 paid on the date of this contract, with a payment of $5,000.00 on December 1, 1961, and a final payment of $5,000.00 on February 1, 1962, to Coury Bros. Ranches, Inc., at Mesa.

'This contract agreement is subject to all the usual conditions governing similar agreements in case of default, failure to abide by any part of such agreements by either party to the agreement, legal costs in case of such default, etc.

S/ Kenneth L. Ellsworth

Kenneth L. Ellsworth

S/ Albert M. Coury

Albert M. Coury, Pres.

COURY BROS. RANCHES, INC.'

Coury advances seven question on appeal which in general may be said to embrace the sufficiency of Ellsworth's evidence to support any judgment for damages under the present posture of the case. Two legal propositions are common to these questions: whether Ellsworth can recover for the avoidable consequences of known breaches, and whether the evidence was sufficient to establish the Ellsworth's damages with reasonable certainty.

The obligation to avoid the consequences of known injuries was recognized by this court in S. A. Gerrard Co. v. Fricker, 42 Ariz. 503, 27 P.2d 678, 680, a case of destruction of bees and bee colonies. There we said:

"Stated in broad terms, however, the measure of damages is such sum as will compensate the person injured for the loss sustained, with the least burden to the wrongdoer consistent with the idea of fair compensation, and with the duty upon the person injured to exercise reasonable care to mitigate the injury, according to the opportunities that may fairly be or appear to be within his reach. * * *' 17 C.J. 844, § 166.'

Avoidable consequences is in part discussed by Corbin in this vein:

'It is not infrequently said that it is the 'duty' of the injured party to mitigate his damages so far as that can be done by reasonable effort on his part. Since there is no judicial penalty, however, for his failure to make this effort, it is not desirable to say that he is under a 'duty'. His recovery against the defendant will be exactly the same whether he makes the effort and mitigates his loss, or not; but if he fails to make the reasonable effort, with the result that his injury is greater than it would otherwise have been, he cannot recover judgment for the amount of this avoidable and unnecessary increase. The law does not penalize his inaction; it merely does nothing to compensate him for the loss that he helped to cause by not avoiding it.' 5 Corbin on Contracts, § 1039 pp. 242 & 243.

Justice Cardozo in discussing the damages in a concurring opinion to which a servant was entitled who was wrongfully discharged said:

'What is meant by the supposed duty is merely this: That if he unreasonably reject (other employment) he will not be heard to say that the loss of wages from then on shall be deemed the jural consequence of the earlier discharge. He has broken the chain of causation, and loss resulting to him thereafter is suffered through his own act.' McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605, 609.

The pastures specified in the contract between the litigants before this court consisted principally of 80 acre tracts scattered over an area of some 5 or 6 miles. Ellsworth had been in the sheep business for eighteen to twenty years and had pastured sheep with Coury for a number of years prior to October 16, 1961. However, the pasturage had always been on a per head per day basis. His theory of damages was that, because Coury did not properly irrigate the alfalfa or timely plant and irrigate the winter barley and wheat, there was insufficient feed resulting in the death of his sheep by bloat, starvation and disease. Coury concedes that there was evidence submitted to the jury from which it could have found breaches of the agreement but attacks both the legal basis for the submission of the evidence and its sufficiency to sustain any judgment.

Concerning the barley and wheat Ellsworth testified that prior to the signing of the contract:

'* * * I told Mr. Coury that if I was to pasture barley it would have to be planted immediately. Barley should be planted before the 1st of November to get a pasturing. The ideal time would be the 1st of October.

'* * * it has to have sufficient growing period to get up to the height for pasturing, if it's to be pastured off-well, the contract read into February and had to have that growing period to get that pastured off before the time limit.

'He agreed that it could be done.'

At another time he testified: '* * * it has to be planted in October, not any later than the 1st of November.'

The earliest planting of barley or wheat was on the 20th or 25th of November, 1961, and the other plantings were made through the 14th of January, 1962. In a conversation with Coury's ranch manager on the 12th of November, Ellsworth expressed concern 'that barley and wheat hadn't been planted and it was--well, it was just getting too late. I knew it was too late then.' (Emphasis supplied).

Accordingly, it is clear from Ellsworth's own testimony that he was aware at least as early as the middle of November, 1961, that 500 acres of barley and wheat would not be available for pasturing in February of 1962. At that time it became his duty to make reasonable efforts to prevent losses which could occur from insufficient pasturage.

In considering the evidence concerning the alfalfa the testimony of Kenneth L. Ellsworth is so uncertain, inconsistent and contradictory, that it is impossible to determine what basis the jury used in determining the issues as submitted to them by the trial court. Ellsworth testified concerning the alfalfa that '* * * it was a fair stand all the way through;' that he moved the first sheep onto the property on the 21st of October and by the 31st of October had a peak number of 3,170; that by the 2nd of December the sheep had grazed off the alfalfa and were taken from the Coury property to other pasturage.

His testimony was:

'Q. And how long did that number of sheep remain on the Coury Ranch?

'A. It (sic) went on it the 21st of October, and then the 23rd of October there was two different moves on there, and the last...