Fullmer v. Proctor

• Citation: 82 P.2d 1103,59 Idaho 455
• Decision Date: 20 May 1938
• Docket Number: 6599
• Parties: H. E. FULLMER, Appellant, v. E. D. PROCTOR, Respondent
• Court: Idaho Supreme Court

82 P.2d 1103

59 Idaho 455

H. E. FULLMER, Appellant, v. E. D. PROCTOR, Respondent

No. 6599

Supreme Court of Idaho

May 20, 1938

CONTRACTS-AGREEMENT PARTLY WRITTEN AND PARTLY ORAL-EVIDENCE-QUESTION OF FACT-JUDGMENT NOTWITHSTANDING VERDICT.

1. In action on pasturing contract for balance allegedly due for pasturing 1173 cattle, evidence as to whether contract contemplated pasturage of all cattle furnished by defendant at certain price per head, or pasturage of only 700 head, for which defendant paid, supported verdict allowing recovery.

2. In action on pasturing contract for balance allegedly due for pasturing 1173 cattle, whether contract contemplated pasturage of all cattle furnished by defendant at certain price per head, or pasturage of only 700 head, for which defendant paid, was for jury.

3. Contracts may be oral, written, or partly oral and partly written.

4. It is only when reasonable minds could not differ as to the conclusion to be drawn from the evidence that a question of law arises.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. Jay L. Downing, Judge.

Action on an alleged contract. Judgment for defendant non obstante veredicto. Reversed and remanded.

Cause reversed and remanded, judgment non obstante veredicto set aside, judgment entered with the verdict. Costs to appellant.

R. J Dygert, for Appellant.

An instruction which directs a verdict has the same effect as an order sustaining a motion for nonsuit, in that it admits the truth of the adversary's evidence, and every inference of fact that may be legitimately drawn therefrom. In effect it instructs the jury that there is no evidence to support the claim of the party against whom such verdict is directed. (Smith v. Marley, 39 Idaho 779 (p. 783), 230 P. 769 and citing, Pocatello Security T. Co. v. Henry, 35 Idaho 321, 206 P. 175, 27 A. L. R. 337; Keane v Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60; Marshall v. Gilster, 34 Idaho 420, 201 P. 711.)

S. T Lowe, for Respondent.

A plaintiff must recover, if at all, upon the cause of action alleged in the complaint. He cannot recover when the evidence does not sustain the allegation of his complaint unless the complaint be amended to conform to the proof. (Bean v. Katsilometes, 50 Idaho 485, 489, 298 P. 363, 365; First Nat. Bank v. Eames, 55 Idaho 628, 45 P.2d 795; Snoderly v. Bower, 30 Idaho 484, 166 P. 265; McAllister v. Union Indemnity Co., 2 Cal. (2d) 457, 32 P.2d 650, 42 P.2d 305.)

Where a cause of action is based upon one contract and the proof establishes an entirely different contract there is a failure of proof. (I. C. A., sec. 5-903; First Nat. Bank v. Eames, supra; Bean v. Katsilometes, supra; Phillips v. Brown, 21 Idaho 62, 120 P. 454; Gillin v. Hopkins, 28 Cal.App. 579, 153 P. 724; Brown v. Sweet, 95 Cal.App. 117, 272 P. 614.)

GIVENS, J. Morgan and Ailshie, JJ., concur. HOLDEN, C. J., Budge, J., Dissenting.

OPINION

GIVENS, J.

Appellant 's first cause of action is the only one involved herein as follows:

"That on or about the 19th day of August, 1936, the defendant agreed to purchase pasture from the plaintiff for cattle for the balance of the pasture season in Caribou County, Idaho, of the year 1936, at the agreed price of $ 3.50 per head for the balance of the season.

"That between the 19th day of August, 1936, and the 3rd day of September, 1936, the plaintiff received from the defendant for the purpose of pasturing during the balance of the pasture season of 1936, One thousand, one hundred and seventy-three (1173) head of cattle at the agreed price of $ 3.50 per head for the season."

continuing with allegations of performance on his part, partial but incomplete payment by respondent and assertion of a balance due of $ 870.50.

No demurrer appears in the record and the answer is first a general denial and this affirmative defense:

"That on or about the 12th day of August, 1936, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to sell to this defendant and the defendant agreed to purchase 700 tons of hay for the sum of $ 6.00 per ton, the same to be fed by the plaintiff to the cattle of defendant upon the Austin ranch in Caribou County, Idaho. The plaintiff further agreed to pasture for this defendant 700 head of cattle during the pasturage season of 1936, and the defendant agreed to pay therefor, $ 3.50 per head for 600 and $ 3.25 per head for 100 head.

"That pursuant to said contract, the said plaintiff sold and delivered to this defendant 713.51 tons of hay and pastured for this defendant 740 head of cattle, that his defendant paid to the plaintiff for the said hay and pasturing of the cattle the sum of $ 6,846.60, which said payments were accepted by the plaintiff. That by reason thereof, the said defendant has been fully paid for the said hay and pasturing of said livestock."

The trial court gave the complaint and answer to the jury as stating the issues involved instead of narrating or paraphrasing them, which found for appellant.

At the conclusion of appellant's case in chief, respondent moved for a nonsuit on these grounds:

"First: that there is a material variance between the allegations of the amended complaint of the plaintiff, and the proof, in this:

"a. The evidence shows that there was a written contract entered into between the plaintiff and the defendant herein, and whereby the plaintiff sold to the defendant pasturage on the Austin ranch for the remainder of the season of 1936 for 700 head of cattle at a price of $ 3.50 for 600 cattle, and $ 3.25 per head for 100 head of cattle;

"b. The evidence shows that the pasturage purchased under the written contract has been paid for in full;

"c. The evidence shows that if the plaintiff had purchased the pasturage on the Stocking ranch it was not purchased for the season of 1936, but was only purchased for a period of two months;

"d. The evidence shows that the season for pasturing cattle on the Austin ranch extended to approximately, December 20th, 1936.

"Second: That the evidence shows that the plaintiff procured the pasturage upon the Stocking ranch for the benefit of the defendant Proctor and Bunds and not for himself; that the defendant Bunds accepted the contract and paid the purchase price therefor;

"Third: That if the Court could conclude from the evidence that the plaintiff purchased the pasturage on the Stocking ranch and sold the same to the defendant, it was purchased under a different contract than was the pasturage on the Austin ranch and for a different period of time;

"Fourth: The evidence shows that the plaintiff had no right, title or interest in the pasturage on the Stocking ranch because he did not have a valid contract of purchase of the pasturage and paid no consideration therefor;

"Fifth: There is no evidence that the defendant and Bunds, or either of them, ever agreed to pay the plaintiff for the pasturage on the Stocking ranch the sum of $ 3.50 per head per season, or any other sum per head per season or any other sum."

which was denied, renewed in substance at the conclusion of the entire case, and again denied. After verdict for appellant a motion for judgment notwithstanding the verdict was made by respondent on the same grounds and reasons, and granted by the trial court and judgment entered accordingly, from which this appeal was taken.

The respondent justifies the judgment non obstante veredicto on the grounds that (1) a plaintiff must recover, if at all, upon the cause of action alleged in the complaint. He cannot recover when the evidence does not sustain the allegation of his complaint unless the complaint be amended to conform to the proof, and (2) where a cause of action is based upon one contract and the proof establishes an entirely different contract there is a failure of proof. Respondent contends that the only contract shown was that alleged in his affirmative defense and that the appellant did not pasture for the respondent the 443 head of cattle that were pastured on the Stocking ranch, for the evidence conclusively shows that the appellant grounds his claim to title or an interest in the pasturage on the Stocking ranch on the memorandum agreement "Exhibit D."

The defect in respondent's position is that he entirely relies upon two written memoranda as constituting an entire and complete written contract and ignores the evidence which tended to show there were continuing negotiations between appellant and respondent commencing with these memos and ending with a final agreement of pasturage for the 1173 head as claimed and testified to by appellant.

The memoranda on their face are so incomplete that without extraneous evidence no definite or certain agreement could be gleaned therefrom.

One of the memoranda, Plaintiff's Exhibit "C," ^[1] was signed by respondent and the other, Defendant's Exhibit 14, ^[2] by appellant and exchanged, but neither states who the other party was, what was to be pastured, whether horses, cattle, sheep or pigs. From the entire record it is apparent appellant contended there was an agreement between the parties whereby he was to furnish pasture for whatever cattle respondent should ship from Montana to the Soda Springs country for the 1936 summer and fall season at $ 3.50 per head, a deduction of 25 cents; per head for 100 head being allowed on account of a back haul from Soda Springs to McCammon, the cattle being intended for ultimate shipment to California.

Agreement

600

$ 3.50

per

head

for

season

3

mo.

100

3.25

per

"

"

"

"

"

700

$ 1000

$ 1000 paid

I, E. D. Proctor agreed to take 700 tons hay with understanding I am to buy 1200 tons total if satisfactory with Mr. Bunds. At price of $ 6.00 per ton fed out.

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