George v. Emery

• Decision Date: 03 March 1910
• Docket Number: 604
• Citation: 107 P. 1,18 Wyo. 352
• Parties: GEORGE ET AL. v. EMERY ET AL
• Court: Wyoming Supreme Court

107 P. 1

18 Wyo. 352

GEORGE ET AL. v. EMERY ET AL

No. 604

Supreme Court of Wyoming

March 3, 1910

ERROR to the District Court, Big Horn County; HON. CARROLL H PARMELEE, Judge.

The facts are stated in the opinion.

Affirmed.

Ridgely & West, for plaintiffs in error.

The defendants having assumed the burden of proof, it was incumbent upon them to prove one of two principal facts in order to maintain their allegation of failure of consideration: (1) That on January 7, 1907, there were not 450 head of cattle bearing the brands sold in existence, or (2) that the title did not pass to the defendants at that date, and that their possession of the same was merely as bailees for the plaintiffs. Under ordinary circumstances loss of personal property must be borne by the legal owners. (Main v. Jarrett, 119 Am. St. 144; Frech v Lewis, 120 Am. St. 864; Phosphate Co. v. Gill, 1 L. R. A. 761.) If there were not 450 head of cattle on the range on November 1, 1907, that being the date when the tally was to have been completed, but that number were on the range on January 7, 1907, then there must have been a loss in the meantime. The defendants wholly failed to show the number of cattle on the range in January. The plaintiffs proved that during November and December, 1906, cattle to the number of 461 bearing the brands sold had been actually counted on the range. The right of defendants to recover, therefore, depends upon whether the title passed at the date they took possession and paid for the property.

Oral evidence is not admissible to modify or vary the terms of a written contract, but that rule does not apply to agreements made between the parties subsequent to the execution of the written agreement. It is competent for parties to a written contract at any time before a breach thereof, by a subsequent verbal agreement upon sufficient consideration, either to waive, dissolve or annul the previous written agreement, and such subsequent agreement may be proven by parol. (Windlinger v. Smith, 40 Am. Rep. 727; Stoop v. Smith, 97 Am. Dec. 76; Canal Co. v. Ray, 101 U.S. 527; Clark on Contracts, 618-619; Lawson on Cont., 395; Taylor v. R. R. Co., (N. C.) 6 Am. St. 512; Delaney v. Linden, (Neb.) 34 N.W. 630; Abbott's Proving Facts, (2nd Ed.) 3; Cook v. Cain, (Wash.) 77 P. 682; Harris v. Murphy, (N. C.) 56 Am. St. 656; Grace v. Lynch, (Wis.) 49 N.W. 751; White v. Soto, (Cal.) 23 P. 213; Emerson v. Slayter, 22 Howard, 218; Swain v. Seaman, 9 Wall. 254; McCauley v. Keller, (Pa.) 17 Am. St. 759; Platt v. United States, 22 Wall. 497; Calipe v. Mining Co., (Colo.) 48 P. 668; Cummings v. Arnold, (Mass.) 37 Am. Dec. 154; Spaun v. Bartzell, (Fla.) 46 Am. Dec. 346; Perrine v. Cheeseman, (N. J.) 19 Am. Dec. 388; Viele v. Ins. Co., (Ia.) 96 Am. Dec. 83; Hale v. Sheehan, 41 Neb. 102, 59 N.W. 554; Rogers v. Atkinson, 1 Ga. 12; Brewster v. Countryman, 12 Wend. 446; Bryant v. Hunt, 70 Am. Dec. 262.) The consideration in the subsequent agreement was the immediate delivery of the cattle into the possession of the defendants, so that they could ship beef cattle out of the herd and winter and care for them as they deemed proper. This constituted a good and valuable consideration. The act of the defendants in immediately executing and delivering the note in suit after the subsequent agreement had been entered into seems a circumstance that the jury might well have considered in determining whether or not the subsequent agreement really existed. It was competent for the plaintiffs to submit the testimony tending to establish a subsequent agreement, leaving it for the jury to find whether there was a subsequent agreement, and what effect, if any, it had upon the contract in question. It was therefore prejudicial error to strike out the testimony offered by the plaintiffs upon this point.

The question of delivery and acceptance, the passing of title, and the waiver of conditions in sales and contracts are all questions of fact, depending upon the intention of the parties, and therefore it is the province of the jury to determine what the real intent of the parties was in entering into the contract. The jury may determine the matter as much from the acts of the parties as from what they may have said. (6 Curr. Law, 633; Reich v. Sweinhart, (Pa.) 51 Am. Dec. 540, 11 Pa. St. 233; Elliot v. Howeson, 40 So. 1018; Tiedeman on Sales, Sec. 67.) Where the performance of the obligation is prevented by one of the parties to a contract the party prevented from discharging his part will be protected as though he had performed it. (Marshall v. Creig, 4 Am. Dec. 647; Packing Co. v. Clawson, (Colo.) 95 P. 546; LaFollett v. Mitch, (Ore.) 69 P. 916; 8 Curr. Law, 13, 39; Bell v. Hatfield, (Ky.) 89 S.W. 544; White v. DeSoto, (Cal.) 23 P. 210.) The defendants admitted that in their shipment of cattle in January, 1907, a number of the cattle involved in this transaction were included, but no accurate tally was kept of them, and by their act, therefore, they rendered it impossible to make a correct tally of the cattle sold. Defendants also admit that they made several shipments prior to November, 1907, in which there were included cattle covered by the contract. As the cattle were to be tallied on Nov. 1, 1907, unless defendants waived that clause by their subsequent agreement, the plaintiffs were entitled to have the cattle kept where they could be counted until a date fixed in the contract for the counting. The acts of the defendants in thus shipping the cattle is not consistent with their theory that they were simply holding them as bailees for the plaintiffs. It was prejudicial error for the court to direct a verdict in favor of the defendants, for the evidence was conflicting upon the facts, and the amount of recovery was clearly a matter for the jury to determine. The plaintiffs' motion for a new trial on the ground of newly discovered evidence should have been granted.

Lonabaugh & Wenzell, for the defendants in error.

The evidence offered by the plaintiffs to show that the cattle were not to be tallied was incompetent, for it was thereby attempted to vary the written contract. (Grieve v. Grieve, 89 P. 569.) The oral agreement waiving the counting of the cattle appears to have been made, if at all, before the completion of the written contract, and it could not therefore be pleaded or proven. Such oral agreement would not be competent unless made after such contract and upon a valid consideration. The proposition that plaintiffs were entitled to a new trial upon the ground of newly discovered evidence is untenable. If the evidence was really in existence it was the duty of the plaintiffs to have shown it by the affidavits of the witnesses themselves, and not by the affidavit of one of the plaintiffs. (Braithwaite v. Aiken, 49 N.W. 419; Wheeler v. Russell, 67 N.W. 43.) The proposition that the defendants had accepted the cattle without requiring them to be counted seems to have been an afterthought on the part of the plaintiffs, induced by their efforts to avoid the contract. No duty devolved upon the defendants to hold the cattle actually received by them and tallied. That one of the plaintiffs by actual count found about 461 head in November, 1906, is not evidence as to the number in existence at the date of the contract, for many things could happen between November and January, even if the question as to the number of cattle the plaintiffs had in January, 1907, is at all material. There was no change of possession of the cattle. The defendants for some time prior to the date of the contract had been running the cattle for the plaintiffs; the cattle were then on the public range and there could be no delivery or actual change of possession until they could be rounded up on the range and counted. There were indeed a few head in the pasture, and these were immediately counted and delivered. The giving of the note by the defendants was the final act closing the agreement, and that act could not be considered by the jury as showing a subsequent oral agreement.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The plaintiffs brought this action to recover the sum of $ 1,371.47 with interest and attorneys' fees from the defendants; alleging the same to be a balance due upon a promissory note executed by defendants to plaintiffs for the sum of $ 4,053.12, dated January 7, 1907, and due nine months after date; that about April 1, 1907, plaintiffs delivered said note to the Bank of Commerce, Sheridan, Wyoming, as collateral security for a note of $ 3,000, dated April 1 1907, and due October 7, 1907; that the $ 3,000 note had been paid and the collateral note returned by the bank to plaintiffs with the indorsement of $ 3,044.16 thereon, which had been paid. The defendants answered admitting the execution of the note, but denied that the sum indorsed thereon, or any sum, had ever been voluntarily paid by them thereon, and alleged that the amount of the credit on said note was deducted by the bank from moneys of defendants on deposit in said bank and applied in payment of said $ 3,000 note of plaintiffs and credited upon the note in suit without authority of defendants. That the consideration for said note had wholly failed, and that there never was any consideration therefor; that at the time of the execution of the note the plaintiffs represented to defendants that they owned 450 head of cattle and 5 head of horses which they desired to sell, the cattle at $ 25 per head, and the horses at $ 50 per head, amounting in the aggregate to $ 11,500. That defendants...