Edwards v. Murray

• Decision Date: 28 December 1894
• Citation: 38 P. 681,5 Wyo. 153
• Parties: EDWARDS v. MURRAY
• Court: Wyoming Supreme Court

38 P. 681

5 Wyo. 153

EDWARDS v. MURRAY

Supreme Court of Wyoming

December 28, 1894

Commenced in District Court, July 22, 1893.

ERROR to District Court for Laramie County. HON. RICHARD H. SCOTT Judge.

This action was originally brought in the District Court for Albany County and transferred on change of venue to Laramie county. Edward S. Murray sued to recover balance due from Griff W. Edwards upon a written contract for the sale and delivery of certain sheep. The officer in charge of the jury after their retirement, in answer to a question from a juryman as to when they would be called into court, said "I suppose some time next week." He made affidavit that said remark was made thoughtlessly, and in a joking manner, without any intent to influence the jury, or to bias or prejudice the right of any of the parties. The affidavit attached to the motion for new trial on this point was made by one of defendant's attorneys, and was to the effect that in the court room on Saturday afternoon, while the jury were out, the bailiff stated that he thought the jury would soon reach a verdict, for the reason that he had told them that if they did not agree the judge would let them stay out until Monday evening; and that, in a few minutes thereafter the jury returned into court with a verdict. The other facts, so far as the proceedings in error are concerned, sufficiently appear in the opinion.

Judgment affirmed.

Clark & Beard, C. C. Hamlin and John F. Mail, for plaintiff in error.

The court having instructed the jury that the burden of proof was upon the defendant below upon the question of fraud and fraudulent representations; and under the instructions the only issue submitted to the jury being that question, the defendant had the right to open and close the argument. (Bank v. Metcalf, 29 Mo. App., 284; Huntington v. Conkey, 33 Barb., 218; 1 Thomp. on Tr., Secs. 231, 233; 35 Neb. 372.) The statement of the bailiff to the jury was prejudicial to plaintiff in error. (Obear v. Grey, 68 Ga. 182; Chalston v. Chalston, 31 id., 625; Cole v. Swan, 4 G. Greene, 32; People v. Knapp, 42 Mich. 257.) The verdict is against the evidence. The evidence of the witness Young was incompetent and immaterial.

Lacey & Van Devanter, for defendant in error.

Where the plaintiff has anything to prove under any one of several issues, in the first instance in order to recover, the right to open and close is with him. (Thomp. on Tr., Sec. 232 and cases cited. ) The officer's statement to a juryman contained no threat, and was not calculated to mislead the jury. (State v. Wart, 51 Ia. 587; Daniel v. Frost, 62 Ga. 697; Price v. Lambert, 3 N.J.L. 122; Wiggins v. Downer, 67 How. Pr., 65; Taylor v. Everett, 2 id., 23; Pope v. State, 26 Miss. 121; Leach v. Wilbur, 9 Allen, 212; Darling v. R. R., 17 R.I. 708.) The brief of plaintiff in error raises no point as to sufficiency of evidence, as it merely states that the evidence was insufficient. It does not comply with the rules of this court. However, the evidence was sufficient. The admission of Young's testimony is not discussed in the brief. The objection thereto is, therefore, waived. The motion for new trial does not complain of such testimony, and the objection is, for that reason, also waived. (Rules 13, 14, 21.)

CONAWAY, JUSTICE. GROESBECK, C. J., and CORN, J., concur.

OPINION

CONAWAY, JUSTICE.

On September 12, 1892, by written contract between the parties, defendant in error sold to plaintiff in error "six thousand eight hundred (6,800) head of one and two year old wethers, all branded with an 'S' brand, and a part of them branded with an 'M' brand, being the one and two year old wethers purchased by the said party of the first part from Seldom, Ridge & Pebbles and V. S. Acord." It appears that instead of Seldom, Ridge & Pebbles there should have been written Seldomridge & Pebbles, a clerical error in reducing the contract to writing. These sheep were to be delivered by defendant in error to plaintiff in error at Rock Springs, Sweetwater County, Wyoming, on June first, 1893, or at any time in May of that year, upon reasonable notice by plaintiff in error.

Defendant in error contracted to "handle, run, herd and care for" the sheep, at his own expense, but as agent or bailee for plaintiff in error, and to give them all proper care and attention until such delivery, and to run them in bands of not more than twenty-seven hundred each, and to make good any loss that might occur, by other wethers of the same age and grade, and deliver not less than six thousand eight hundred head, and to deliver them in a good and clean condition, but if they should be found to be scabby, to pay for dipping them; and if they should become scabby during the winter of 1892-93, to dip them as soon as the weather would permit.

The consideration paid and to be paid by plaintiff in error was twenty-two thousand nine hundred and fifty dollars. Seventeen thousand was paid at the execution of the contract, and five thousand nine hundred and fifty dollars was to be paid on the delivery of the sheep. On May 22, 1893, a delivery of the requisite number of sheep was made upon the written request of plaintiff in error.

The plaintiff in error alleges certain violations of the contract by defendant in error, and certain fraudulent representations by which plaintiff in error was induced to enter into such contract, on account of which plaintiff in error refused and still refuses to make the final payment of five thousand nine hundred and fifty dollars.

To recover this sum, with interest from June first, 1893, defendant in error brought this action in the District Court of the Second Judicial District for Albany County, setting forth the contract and alleging compliance, on his part, with its terms.

Plaintiff in error admits the making of the contract, and by way of defense and counter claim alleges that he had no opportunity to examine the sheep when he made the purchase, but relied upon false and fraudulent representations of defendant in error that the sheep were of a grade and quality better than they, in fact, were, to the damage of plaintiff in error, in the sum of twelve thousand seven hundred and fifty dollars; and that defendant in error negligently handled and cared for the sheep and allowed them to become diseased and scabby, to the damage of plaintiff in error in the sum of six thousand dollars; and that plaintiff in error was compelled to pay for dipping the sheep the sum of two hundred and thirty-eight dollars. Plaintiff in error prays judgment for eighteen thousand nine hundred and eighty dollars.

There was a trial by jury and a verdict and judgment in favor of defendant in error for four thousand eight hundred...