Edwards v. Willson

• Citation: 30 Wyo. 275,219 P. 233
• Decision Date: 29 October 1923
• Docket Number: 1089
• Parties: EDWARDS v. WILLSON, ET AL
• Court: United States State Supreme Court of Wyoming

219 P. 233

30 Wyo. 275

EDWARDS v. WILLSON, ET AL

No. 1089

Supreme Court of Wyoming

October 29, 1923

ERROR to District Court, Niobrara County; WILLIAM C. MENTZER Judge.

Action by James Edwards against Eugene B. Willson and another, doing business under the name of Willson Bros., for an accounting and judgment for division of profits derived from certain sheep owned and ranged by the parties. There was a judgment for plaintiff, and plaintiff and defendants bring error.

Modified and Affirmed.

Ross and Lee and J. G. Hartwell for plaintiff in error.

This is an action brought by plaintiff against the defendants for an accounting, growing out of a transaction in which the plaintiff entered the employment of defendants as a sheep herder, at a fixed salary with the privilege of purchasing a certain number of sheep from defendants and ranging them with the flocks of defendants' sheep under an agreement for the deduction of losses each year and certain expenses, the net proceeds of profit from said sheep and the natural increase to be paid to plaintiff. A dispute occurred between the parties resulting in plaintiff's action against defendants for an accounting, which was referred to a referee to take the evidence and return findings thereon; defendants excepted to the findings of the referee, and the cause, was later tried before the court, resulting in a finding in favor of plaintiff in the sum of $ 2,699.48, being considerable less than the amount found due plaintiff in the findings of the referee; it is the contention of plaintiff in error that the trial court erred in its computation of the amount due plaintiff. The testimony covers facts relating to the operation of the business for several years, and involves computations of increase, wool production, losses and certain items of expense in operation. The testimony of defendant E B. Willson, who undertook to testify from books kept during the period, is incomplete and unsatisfactory, for the reason that not all of the items affecting the transaction were entered by him in his books; the percentage of actual losses during the years covered by the transaction varies according to the different years and in some instances is based upon estimates arrived at by witnesses called by defendants; the record of the evidence is voluminous, but we have tabulated and set forth in the brief, what appears to be the essential facts established by the entire evidence; from this it will appear we believe, that the trial court erred in its conclusion as to the amount of wool, and the increase in the number of sheep with which plaintiff should have been credited; defendants' books were admitted over objection made on the ground that they were unintelligible; even the witness who kept the books was unable to explain them, or to show wherein said books sustained defendants' position. There are two findings before this court, one by the referee and one by the trial court, which present a wide difference in the conclusions reached, and the evidence being so overwhelming against the conclusions of the trial court, we feel that the case is one wherein the Supreme Court should set aside the findings of the trial court and render a decree on the record for the proper amount. Under the general rule an appeal in equity brings up the whole case, and the appellate court passes upon the record as to the facts as well as to the law. 4 C. J. 659; 1192; An appellate court may also on reversal direct the judgment of a referee without granting a new trial. 2 R. C. L. 283. The referee made findings in favor of the plaintiff for $ 17,734.92; it was shown that he was a capable accountant of a number of years experience, and in every way qualified to pass upon the facts, which involved accounts between the parties, covering a period of years. The circumstance in itself is sufficient to render his findings and decision worthy of full credit and binding upon the parties, unless this court should find convincing evidence that the findings and conclusions of the referee were erroneous.

W. C. Kinkead and H. B. Henderson, Jr., for defendants in error.

Plaintiff's action was for an accounting and recovery of the value of 200 ewes including their increase and wool production covering a period between 1909 and 1917. Plaintiff recovered judgment below, and complains that it was inadequate in amount. The record of the evidence is discussed in considerable detail in the briefs with tabulations relating to the account in controversy. Exceptions were taken by each of the parties to the findings of fact and conclusions of law rendered by the court below, and both filed motions for a new trial;

There was no completed sale to plaintiff, and even had there been a complete sale, plaintiff permitted the ewes he claimed to have purchased, to be confused with defendants' flocks, and it was incumbent upon him to distinguish his property. The only measure of plaintiff's recovery as to sheep and wool, is the price paid with interest from date of sale, plus his wages, less whatever credits defendants are entitled to. The computation in plaintiff's brief is erroneous; the court found generally for the defendants upon the evidence; the confusion of the sheep might result in a joint adventure as to the whole flock in which plaintiff would have a proportionate interest; Clay Robinson Co., v. Larson (Minn.) 146 N.W. 1095; Ayre v. Hickson, (Ore.) 98 P. 515, 133 Am. St. 819; Dale v. Olmstead, 36 Ill. 150; 85 Am. Dec. 397; Lowe v. Martin, 18 Ill. 286. This principle is resorted to, to prevent loss and forfeiture, because of an allowance of confusion of goods, but the rule cannot be applied, unless the property be of the same kind and quality. Manti Sav. Bank v. Peterson, 33 Utah 209; 95 P. 566, 126 Am. St. 817-827; Page v. Jane (N. M.) 190 P. 541; 10 L. R. A. 761. Such is the difficulty here; the inconvenience of confusion falls on him, who permits it. 12 C. J. 492. This is a rule of evidence; the burden is therefore upon plaintiff to identify his sheep; Davenport v. Schutt, 46 Ia. 510; In re Thompson (Ia.) 145 N.W. 76-79; Morin v. Pilon (Wis.) 149 N.W. 140; Pierce v. McDonald, 153 N.Y.S. 810. Formerly one permitting a confusion of his goods with another suffered their loss, 12 C. J. 492; but here there was no completed sale; Bank v. Jollett, 60 Ind. 268, 46 Am. Rep. 222; New England Co. v. Standard W. Co., 165 Mass. 328, 52 A. S. Rep. 516; Barber v. Andrews, 26 L. R. A. (NS) 15; Plaintiff was familiar with the account entered and kept from year to year, and made no objection; he is not in a position to challenge the correctness of the account now, 30 Cyc. 704, the presumptions are in favor of the findings of the trial court, being correct, Morin v. Pilon, supra. Defendants lost one band of 2,000 sheep in a winter storm. If plaintiff had specific sheep, were they in that lost band, or were they in one of the other more fortunate bands, this fact renders estimates uncertain; plaintiff relies upon a sale of specific property. It was therefore necessary to identify it. Wetherby v. Meyer (N. Y.) 50 N.E. 58; Cramer v. Grand Rapids Co., 223 N.Y. 63, 119 N.E. 227; Cent. C. & C. Co., v. Hartman, (8 C. C. A.) 111 F. 96. The figures presented by plaintiff's counsel are fanciful and not supported by logical facts. Plaintiff's petition was prepared upon a theory that plaintiff was entitled to recover the value of specific sheep and their increase, and production, which he had permitted to be confused with defendants' bands, and as that theory is rejected by law, his case must fail, as the petition is insufficient. If plaintiff's theory is considered by the court, then the argument of his counsel must be rejected, because of the insufficiency of the petition to state a cause of action, and the insufficiency of the evidence to sustain the findings and judgment against the defendants.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

James Edwards, the plaintiff below, commenced to work for Wilson Brothers, a co-partnership, one of the defendants below, in caring for the latter's sheep, in the spring of 1909, at the agreed wages of $ 45.00 per month, and he continued in such employment until about January 1st, 1917. Said partnership had, in 1909, approximately 9000 sheep, and out of said number plaintiff, during that year, bought 200 ewes, 100 thereof in the spring and 100 in the fall of 1909, which ewes were to be run by plaintiff in connection with the bands of sheep of said partnership. Plaintiff's ewes remained with said bands of sheep until the sale by said partnership of all of the sheep, including those of plaintiff, in July, 1917, at $ 12.00 per head. In the meantime losses were sustained, gains accrued by the addition of lambs, sheep pelts and wool were sold and all of the receipts went into the hands of said partnership, by which the books were kept. Plaintiff brought this action against said partnership and its individual members for an accounting. The case was referred to a referee, who reported. His report was set aside and the case tried anew to the court, without the intervention of a jury, the court made findings of facts, and judgment was entered for plaintiff for $ 2045.08 as a balance due him, plus $ 654.40 interest, a total of $ 2699.48. Motions for a new trial were filed by both the plaintiff and the defendants, which were overruled, and the parties on both sides have brought proceedings in error here from the judgment entered.

1. Defendants contend that the amount awarded to plaintiff is excessive and that in addition to the wages earned plaintiff, after deduction of amounts paid to or for him, should have been allowed recovery only for the amount originally paid by him for the sheep bought by him, plus...