Davis v. Heiner

Decision Date03 May 1919
Docket Number3315
Citation181 P. 587,54 Utah 428
CourtUtah Supreme Court
PartiesDAVIS v. HEINER

Appeal from District Court, Fourth District, Utah County; A. B Morgan, Judge.

Action by William W. Davis against George A. Heiner. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

George Halverson of Ogden, for appellant.

Elias Hansen of Spanish Fork, for respondent.

GIDEON J. THURMAN, J. CORFMAN, C. J., and FRICK and WEBER, JJ concurring.

OPINION

GIDEON, J.

Three causes of action are stated in the complaint. During the trial the third cause was dismissed, and that will not be further considered. The only dispute respecting the second cause of action is that defendant pleads payment. The whole controversy is therefore concerned with the first cause of action.

Plaintiff alleges an oral contract between himself and the defendant made on or about the 15th day of January, 1917, by which the plaintiff undertook to purchase certain cattle for the defendant and to hold the same until about the twentieth day of February that year at which time they were to be delivered to defendant at Spanish Fork, Utah; that within the limits fixed by that agreement the defendant undertook to pay the plaintiff the amount paid for the cattle and one dollar additional per head for plaintiff's services; that immediately upon the making of the agreement the plaintiff entered upon the performance of the contract, and bought for the defendant prior to the twentieth day of February approximately, 380 head of cattle. There are some other allegations respecting arrangements for cars in which to ship the cattle between the twentieth and twenty-eighth day of February. It is further alleged that on or about the twenty-eighth day of February the defendant informed the plaintiff that he would be unable to take the cattle at that date, countermanded the order for the cars, and requested plaintiff to feed the cattle for an additional ten days and that defendant would pay for the feed required and also the labor necessary in feeding and caring for the same; that at the request of defendant such arrangements continued until about the tenth day of April, when a new contract or an amendment of the preceding contract was made between the parties; that by the new contract the defendant agreed to pay the plaintiff a definite and fixed sum for certain of the cattle therein specified, being an amount greater than the limit agreed upon in the arrangements made in January; that defendant further contracted to pay the plaintiff the cost of the hay fed to the cattle in the meantime and the reasonable value of the labor for such feeding; that the cattle agreed upon were delivered and accepted by defendant on the ninth and tenth of April, and that plaintiff's claim for such cattle, feed, and labor has not been fully paid.

The answer denied the allegations of the complaint, except as admitted by the affirmative statements. As an additional defense it is alleged that a written contract was made between the plaintiff and defendant on the twelfth day of March, 1917, in which defendant agreed to purchase and the plaintiff agreed to sell to defendant certain cattle therein described, which were to be delivered about April first of that year; that it was stipulated in that agreement that the defendant would pay a feed bill of nine cents per head per day; that at the date of the contract certain payments were made to plaintiff; that the stock was delivered on the tenth day of April and an additional payment was made at that date; that at the time of delivery and final settlement a dispute arose as to the number and character of the cattle delivered, "the amount due for feed, and the amount due under the terms of the contract, upon account of said cattle and upon account of the dealings of the plaintiff and defendant over said cattle and said feed bill"; that plaintiff and defendant thereupon stated their accounts to each other and it was found that the defendant was indebted to plaintiff at that time in the sum of $ 1,666, which defendant paid the plaintiff by check, and which the plaintiff accepted in full of all demands against defendant, and that thereafter plaintiff received the amount of said check from the bank upon which it was drawn.

By reply plaintiff admitted the payment of the sums mentioned in the answer, but denied all of the other allegations.

Trial was had to the court and a jury, and resulted in a verdict in favor of plaintiff on the first and second causes of action. From that judgment defendant appeals.

Numerous assignments of error are made respecting the introduction of testimony, refusal of the court to sustain the defendant's motion for a nonsuit, and certain instructions given and others refused.

It appears from the record that both plaintiff and defendant are and have been for a number of years engaged in buying and selling live stock; that prior to the transaction in question the plaintiff purchased cattle for defendant and for a firm known as Heiner Bros., of Salt Lake City, of which firm the defendant was a member. In addition to the particular cattle involved in this action, it is in evidence that during the same period two or three other bunches of cattle were purchased by the plaintiff as the agent or on behalf of the defendant. Respecting these particular cattle the testimony shows that the defendant was present and went with the plaintiff to examine them at the time the purchase was made. They are not involved here, and they are only material as it appears that at the final delivery of the cattle on April ninth and tenth some of these outside cattle were resold or retained by the plaintiff under a new agreement or arrangement made at that date. It also appears that on or about March 12, 1917, the defendant was at the home of the plaintiff in Spanish Fork, and while the cattle involved in this action were then in possession of the plaintiff the following written bill of sale or memorandum was signed by the plaintiff. It is referred to in the record as Defendant's Exhibit 1:

"Bill of Sale for Cattle. Duplicate.

* * * *

"This is to certify that W. W. Davis, of Spanish Fork, has this day, March 12, 1917, bargained and sold to Geo. A. Heiner, of Ogden, the following described live stock, and does hereby guarantee the title thereto, viz.:

No. Head.

Description.

Brands.

Location

Price per

of Brands.

Head.

"About 150 head of cows at $ 46 per head

"About 125 head of 2 year olds at $ 42 per head.

"About 60 head of 1 year olds at $ 32 per head, to be delivered April 1, 1917, feed bill excepted, at 9 cents a day per head.

"Received in part payment for above-mentioned stock $ 5,000.

WM. W. DAVIS."

It is admitted that the stock mentioned in this memorandum or bill of sale includes at least part of the cattle delivered to defendant on April tenth. It is the contention of appellant that this written agreement was the consummation of all prior oral agreements had between the parties. It is also his contention (and defendant so testified at the trial) that no subsequent change or amendment was made to that agreement; that the cattle inspected and received by him were delivered pursuant to the same; that payments were made upon the basis provided therein; and that he had fully paid the plaintiff all amounts due for the stock so delivered and accepted. On the other hand, it is the contention of respondent, and the case was apparently tried upon that theory, that at most this writing contained only a partial statement of the arrangements between the parties; that it was a mere memorandum or receipt given at that time for the payment of the amount mentioned therein which was to be applied on the cattle already purchased by the plaintiff as the agent, or at the request of, the defendant; that, in addition, the stock were not delivered at the time specified, to wit, April first, that a subsequent arrangement or agreement was had on April ninth and tenth by which new obligations were undertaken by both parties; that to all intents and purposes this so-called bill of sale was rendered ineffective; and that the final deal was not completed under the provisions of that contract, but was completed and carried out under arrangements made at the dates of delivery.

Practically all objections to the introduction of testimony on the part of the defendant were based upon the contention that this agreement of March twelfth was a merger of all previous dealings respecting the cattle in question, and for that reason any oral testimony concerning the conversations had between the parties was immaterial and incompetent as tending to vary or contradict the terms of a written agreement. Defendant invokes the elementary rule that, when parties reduce an agreement or contract to writing, all prior negotiations respecting the matter contained within the writing become merged therein, and the writing, in the absence of uncertainty or ambiguity in the language, or fraud on the part of either party, is binding, and oral testimony will not be heard to explain, vary, or contradict the terms of such writing.

In this case the allegations of the complaint are, and the plaintiff's testimony supports the allegations, that a contract was made between the parties in January whereby the plaintiff undertook to buy for defendant certain cattle at not to exceed the price stated, and was to receive as compensation for his services one dollar per head for the cattle purchased. The bill of sale or writing in question is a sale or an agreement to sell the cattle actually bought by plaintiff under the contract claimed by him to have been made in January. We have no way of determining just what was in the minds of the parties when the contract was made in March except the...

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8 cases
  • Startin v. Madsen, 7594
    • United States
    • Utah Supreme Court
    • November 21, 1951
    ...155 P. 436. See also in re McCoy's Estate, 91 Utah 212, 63 P.2d 620; Christensen v. Johnson, 90 Utah 273, 61 P.2d 597; and Davis v. Heiner, 54 Utah 428, 181 P. 587. Being aware of that thought, we consider the contention regarding the insufficiency of evidence of value. The only such eviden......
  • Fowler v. Medical Arts Bldg.
    • United States
    • Utah Supreme Court
    • January 16, 1948
    ...Rio Grande Railroad Co., 37 Utah 238, 107 P. 241, Ann.Cas. 1912C, 218; Smith v. Columbus Buggy Co., 40 Utah 580, 123 P. 580; Davis v. Heiner, 54 Utah 428, 181 P. 587; Shields v. Utah Light & Traction Co., 99 Utah 105 P.2d 347; Anderson v. Nixon, 104 Utah 262, 139 P.2d 216. In these cases we......
  • Shields v. Utah Light & Traction Co.
    • United States
    • Utah Supreme Court
    • September 13, 1940
    ... ... S. U ... 1933, as construed by this court in Loofborrow v ... Utah Light & Railway Co. , 31 Utah 355, 88 P. 19; and ... in Davis v. Heiner , 54 Utah 428, 181 P ... 587. Quotations from the separate opinions of Justices Gideon ... and Thurman appear in the briefs as to just ... ...
  • Knowlton v. Thompson
    • United States
    • Utah Supreme Court
    • May 26, 1923
    ... ... also, Thomas v. Ogden R. T. Co., 47 Utah ... 595, 155 P. 436; Moore v. U. I. C ... [218 P. 121] ... R. Co., 52 Utah 373, 174 P. 873; Davis v ... Heiner, 54 Utah 428, 181 P. 587; Barry v ... L. A. & S. L. R. Co., 56 Utah 69, 189 P. 70; ... State v. Lake, 57 Utah 619, 196 P. 1015; ... ...
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