Gaido v. Tysdal

• Decision Date: 11 September 1951
• Docket Number: No. 2507,2507
• Citation: 68 Wyo. 490,235 P.2d 741
• Parties: GAIDO, v. TYSDAL.
• Court: Wyoming Supreme Court

Page 741

235 P.2d 741

68 Wyo. 490

GAIDO, v. TYSDAL.

No. 2507.

Supreme Court of Wyoming.

Sept. 11, 1951.

McAvoy & Lowe, Robert S. Lowe, Newcastle, for appellant.

Wakeman & Jones, E. Wakeman, Newcastle, for respondent.

RINER, Justice.

The District Court of Weston County entered a judgment against the defendant Lars Tysdal in an action wherein Severino Gaido was plaintiff and Lars Tysdal and Lloyd Tysdal were defendants. The defendant, Lloyd Tysdal, was by the judgment aforesaid dismissed out of the case and no question arises here in consequence of the court's ruling on that matter. The judgment against his father, Lars Tysdal, is the one which is attacked by the latter in this direct appeal proceeding.

The alleged facts presented for our consideration may be gathered readily and with reasonable accuracy from a brief outline of the pleadings of the parties.

Plaintiff's petition filed October 8, 1949, states in substance in paragraph No. 1 that the defendants were on December 16, 1941, the owners with right of disposal of certain timber lands of about 1,000 acres in the county aforesaid which are described by section, township and range; that defendants sold all of the timber on these lands to plaintiff under a written contract of sale, copy of which is attached hereto and made a part of the pleading. In paragraph No. 2 of the plaintiff's petition it is stated that at the time of entering into this contract of sale plaintiff paid the defendants pursuant to said agreement the sum of $500 as advance payment and for stumpage for timber to be taken from said land.

In paragraph No. 3, it is also averred that thereafter on December 30, 1942, the parties agreed to amend this contract or rather to abrogate it and did so by a new agreement also in writing, copy of which is attached to and made a part of the petition. In paragraph No. 4, it is alleged that at the time this new contract was signed by the parties it was agreed that plaintiff should have the right to remove only 100,000 feet of timber from said lands as set forth in said contract. The first contract above mentioned provided that Gaido could cut all of the timber on these lands with certain limitations as to size and during a period of three years from December 16, 1941. The amendatory written contract required Gaido to cut and take the full amount of 100,000 feet as aforesaid within one year from the date of the amendatory contract and in such a manner that the remaining timber of Tysdal would be in a compact and even area.

In paragraph No. 5, it was alleged that: '* * * following the execution of the contract Exhibit 'B' hereto, the Defendants came to the Plaintiff and advised the Plaintiff that they had an opportunity to sell the said lands or the timber thereon to the Golden Gate Mine and Timber Company and proposed to Plaintiff that he waive his right to take said 100,000 feet of timber from said lands, to permit them to complete the sale of the same and that upon such sale being made the Defendants herein would return to the Plaintiff the sum of $500.00 theretofore paid over to them under the provisions of said contracts', and in paragraph No. 6, that: '* * * such offer was accepted by this Plaintiff and that the parties hereto then and there entering into an oral agreement by virtue thereof and Defendants agreed to return and pay over to Plaintiff said sum of $500.00 upon making sale of said lands or timber thereon to said Golden Gate Mine and Timber Company and that in accordance with such oral contract, Plaintiff herein refrained from taking said 100,000 feet of timber from said lands and never at any time took any portion thereof and has never received any consideration of any nature or sort for the sum of $500.00 so paid over by him to the Defendants.'

In paragraph No. 7, it is alleged that defendants sold to the Golden Gate Mine & Timber Company all of the timber on said lands and executed a conveyance to the company last mentioned. That since making this sale the defendants neglected and refused to pay plaintiff the said sum of $500 as agreed. This sale to the Golden Gate Mine & Timber Company frequently referred to in the record as the Homestake Company was completed on January 14, 1946, when the $500 payment became due to plaintiff from defendants. Judgment for that amount with interest from the date last mentioned was prayed.

There were separate answers filed by Lloyd and Lars Tysdal on November 8, 1949. Lloyd disclaimed any interest in the matters alleged in plaintiff's petition and stated that he signed the two written contracts described above at Lars' (his father's) request without any consideration whatsoever. The separate answer of Lars Tysdal embodied a general denial of the allegations of plaintiff's pleading except as admitted or qualified.

The allegations of paragraph No. 1 of plaintiff's pleading are admitted by this instrument and also that he (Lars) signed Exhibit 'B' (the second contract). This defendant also admits the averments of paragraph No. 3 of plaintiff's pleading. Paragraph No. 4 of Lars' answer sets forth that: 'He admits that he sold and transferred to the Golden Gate Mine and Timber Company all of the timber situated upon said lands as in Plaintiff's Petition alleged and admits that he executed a conveyance thereof but denies specifically that the Plaintiff at the time of the sale of said timber to said Golden Gate Mine and Timber Company, the Plaintiff had any interest in said timber whatsoever and alleges the fact [to] be that on January the 4th, 1946 he sold said timber to said Golden Gate Mine and Timber Company.' He prayed that plaintiff's petition be dismissed with costs to the defendant, Lars.

The issues being thus framed the cause was tried to the court without a jury on April 4, 1950 and on July 10, 1950, the court entered its judgment as above indicated, said judgment omitting certain preliminary recitals reads:

'* * * and the Court having taken the same under advisement for written argument, and briefs on behalf of each of the parties having been presented to the Court, and the Court having read and considered the pleadings and the testimony and argument of counsel and having read and considered the written briefs filed by counsel for the respective parties herein, and now being fully advised in the premises, all and singular, finds:

'That the Defendant Lloyd Tysdal is not liable to the Plaintiff in any manner by reason of the cause of action herein set up against him and that said cause should be dismissed as to the Defendant Lloyd Tysdal; and the Court further finds generally in favor of the Plaintiff and against the Defendant Lars Tysdal; that the Plaintiff is entitled to have and recover of and from the Defendant Lars Tysdal the sum of Five Hundred Dollars ($500.00) with interest thereon at the rate of Seven Percent (7%) per annum from February 14, 1946.

'It is therefore ordered, adjudged and decreed:

'That this action be dismissed as to the Defendant Lloyd Tysdal;

'That this Plaintiff have and recover of the Defendant Lars Tysdal the sum of Five Hundred Dollars ($500.00) with interest thereon at the rate of Seven Percent (7%) per annum from February 14, 1946 amounting in all to the sum of One Hundred Fifty-four Dollars ($154.00) as of this date, together with plaintiff's costs herein expended taxed by the Clerk of Court at the amount of $9.00.'

The contentions advanced by the appellant Lars against this judgment are by counsel stated in their brief work as follows relative to the oral contract pleaded by plaintiff:

'1. That the alleged and purported agreement of the parties is wholly and entirely void by virtue of the same being an agreement for the sale of real estate not in writing, or not accompanied by a memorandum, signed by the parties to be bound thereby.

'2. That, if the agreement be construed to concern standing timber treated as personal property rather than as real property, then the agreement is not enforceable by action because the buyer did not accept part of the goods nor did he actually receive the same, nor did either of the parties give something in earnest to bind the contract, or in part payment, nor was there some note or memorandum in writing made and signed by the party being charged.

'3. If the above two contentions be not considered sufficient by this Court to reverse the Judgment of the trial Court, it is our third contention that there should be a modification of the amount of the trial Court's Judgment. As shown in the second contract, Plaintiff's Exhibit 2 (R.A. p. 122) respondent cut and removed 60,000 feet of timber, which, calculated at $3.50 per thousand feet, should have netted Appellant $210.00, stumpage--payments.'

Appellant's counsel have frankly but without citation to our cases stated in their brief that: 'As a premise and by way of preliminary statement, we must assume at the outset that the trial Court found that the parties made an oral contract or agreement upon the subject matter of the suit; and, in rendering the Judgment here in the portions thereof from which this appeal is taken, the trial Court must have the benefit of the rule that the trial Court's findings upon conflicting testimony will not be disturbed in this Court when there is substantial evidence tending to support the Judgment and the other, equally well-established rule where there are assignments of error that the Judgment of the trial Court is 'not sustained by sufficient evidence' and 'is contrary to law,' this Court 'must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it.'' (Jacoby v. Town of the City of Gillette, 62 Wyo. 487, 494, 174 P.2d 505, 177 P.2d 204, 169 A.L.R. 502, and cases cited.)

There can be no doubt...