Gifford-Hill-Western, Inc. v. Anderson
| Decision Date | 03 May 1972 |
| Docket Number | INC,No. 3968,GIFFORD-HILL-WESTER,3968 |
| Citation | 496 P.2d 501 |
| Parties | , a corporation, Appellant (Plaintiff below), v. Rodney ANDERSON, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
Arthur Kline, of Kline, Tilker & Lynch, Cheyenne, for appellant.
Maxwell E. Osborn, of Osborn & Grant, Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
Gifford-Hill-Western, Inc., sued Rodney Anderson for $3,755.92 balance claimed to be due on a purchase contract of a sprinkler system, recognizing in its complaint delays in the ability of Anderson to operate the system but asserting his acquiescence thereto. Defendant admitted the contract, denied that the delays were his fault, and stated that because of the late installation of the system the growth of the sugar beets on the premises was arrested and resultant damages were sustained by defendant in the amount of $5,625. In addition to his defending on that ground, Anderson filed a counterclaim for the mentioned amount. The case was tried to a jury which rendered a verdict, finding that plaintiff was entitled to the unpaid balance of the contract, $3,755.92, and $512.52 interest, for a total of $4,277.44, 1 and they further assessed defendant's damages in the sum of $4,170, leaving a difference of $107.44 due to plaintiff. From that part of the judgment entered on this verdict awarding defendant damages, plaintiff has appealed, urging that Anderson was not the real party in interest, that he had waived his right to insist that the contract should have been performed prior to April 1, 1969, and was estopped by his conduct from holding appellant to that date, that Anderson had failed to prove damages, could not recover for consequential damages, and that the damage to the sugar beets if any was not the result of the failure to install the sprinkler system by April 1, 1969.
The circumstances which led up to the controversy are not complicated: Early in 1969 Gifford-Hill-Western and Anderson entered into a '360 Sprinkler Contract.' Installation was to be on land owned by the Anderson Livestock Company of which Anderson was a stockholder and secretary-treasurer. 2 Inserted in the contract was the provision, 'to be installed prior to April 1, 1969.' Although the defendant maintains that the term 'sprinkler system' included the 'sprinkler itself and the irrigation pipe,' Gifford-Hill-Western and the Anderson Livestock Company entered into another written contract on March 31, 1969, for the sale and installation of 2,760 feet of pipe and fittings. (Defendant testified there was no provision in that contract for time of installation since he was told by the salesman that it would only take a day or two.) The installation of the sprinklers on the Anderson land was completed about April 28, but the last work on the pipeline was not performed until May 18. Planting of the sugar beet crop on the Anderson land started on April 20 or 22 and continued for several days. This work was done by Leonard Fornstrom whose agreement with the Anderson Livestock Company, landowner, was that he would receive 50 percent of the crop for performing all farm operations. Testimony was adduced that the beets planted on the portion of the land which had been in wheat the previous years turned brown and died from lack of moisture, which could have been supplied by the sprinkler system, and replanting resulted in a forty to sixtyday loss of growing season. Claim for damages was based on the fact that yield on land about a mile away was 21.0 tons per acre while the Anderson yield was 15.9 tons per acre.
Addressing ourselves to the first mentioned basis of the appeal, we note that the cases cited by plaintiff are not in point as to facts. Moreover objection in the trial court that Anderson was not the real party in interest was not voiced until the close of the evidence and such delay constituted a waiver of any objection on that ground. E. Brooke Matlack, Inc. v. Walrath, D.C.Md., 24 F.R.D. 263, 266-267; United States Fidelity & Guaranty Co. v. Slifkin, N.D.Ala., 200 F.Supp. 563, 573; 6 Wright and Miller, Federal Practice and Procedure: Civil § 1554, p. 701 (1971); and see Pickett v. Associates Discount Corporation of Wyoming, Wyo., 435 P.2d 445, 448.
Turning to the next listed ground of error, we find no...
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