Gilmore v. Mulvihill
| Decision Date | 19 January 1940 |
| Docket Number | 7985. |
| Parties | GILMORE v. MULVIHILL et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; S.D. McKinnon, Judge.
Action by Lee D. Gilmore against T. J. Mulvihill and G. B. Stewart to recover $285 paid on an executory contract whereby plaintiff agreed to purchase 285 head of five-year-old ewes from defendants, and for damages for breach of such contract by the defendants, wherein the defendants filed a counterclaim. From judgment for plaintiff for damages, but which did not include amount paid on purchase price of ewes the plaintiff appeals.
Reversed and remanded.
George W. Farr, of Miles City, for appellant.
F. F Haynes, of Forsyth, for respondents.
This is an action to recover $285 paid on an executory contract whereby plaintiff agreed to purchase 285 head of five-year-old ewes from the defendants, and for damages for breach of such contract by the defendants, with interest on the amounts demanded and costs of suit. A copy of the contract is made Exhibit A to the complaint. Defendants' demurrer to the complaint was overruled. The answer was a general denial followed by counterclaim for alleged breach of contract by the plaintiff. The reply put in issue all the affirmative allegations of the answer.
The contract was entered into September 21, 1937, and provides for delivery f. o. b. cars at Miles City, Montana, between October 1 to 5th, unless weather conditions or other contingency should render further time advisable in which to make delivery, and payment of the balance of the purchase price on delivery. Defendants had theretofore purchased 1,020 ewes from one Lloyd, and it appears that delivery was made of such ewes by Lloyd to the defendants at the time plaintiff was on hand at Miles City to receive the ewes for which he had contracted.
The defendants, in accepting delivery from Lloyd, ran the ewes through a chute, examined their teeth to determine the ages and separated them into three lots--each lot being marked with paint on the head, side or rump to indicate age. Plaintiff was present while the "mouthing" was done, but took no part in the "mouthing" or segregation. He looked on and noted the condition of the teeth of a good portion of the sheep as they passed through the chute and were examined. After the process of "mouthing" and segregation was completed, plaintiff was told he could select the 285 ewes his contract called for from a lot of 310, which defendants contended were all five years old with the exception of 30 to 50 admitted to be six years old or older. Plaintiff testified that he then caught and examined the teeth of some 30 or more of the ewes in the lot of 310, and each one examined was toothless. He thereupon refused to accept the ewes offered on the ground that they were "gummers" and toothless and over five years old. He offered to accept another lot of 137 which he contended were fives, but which defendants said were fours and take his balance out of the 310. Defendants offered to deliver 285 out of the 310 lot and in addition offered to throw in, without cost to plaintiff, 12 culls which Lloyd had turned over to the defendants without cost, and 8 additional, or 20 that defendants offered to add to the 285 free; plaintiff offered to accept 30 over and above the 285, paying for only 285. This the defendants refused; the negotiations ended, and defendants shipped the ewes to Columbus and later sold them, alleging a loss of $245.25 on the resale and expenses incurred by plaintiff's refusal to accept delivery of $116.05, or a total loss sustained of $361.30. This action followed.
The matter was tried to the court sitting with a jury, and the jury returned the following verdict: "We, the jury in the above entitled cause, find the issues herein in favor of the plaintiff and against the defendants and allow and assess the plaintiff's damages at the sum of $114.00, together with interest thereon at the rate of six per cent per annum from the fifth day of October, 1937."
The plaintiff moved to have the judgment include the $285 paid on the purchase price of the ewes in addition to the amount of damages allowed by the verdict. The motion was denied and the judgment was entered for the amount of $114 specified in the verdict. The appeal is from the judgment.
The three assignments of error specified all relate to the court's refusal to grant plaintiff's motion to enter judgment for the advance payment of $285 with interest thereon, in addition to the damages awarded by the verdict.
In addition to the facts above mentioned, the complaint alleges that the plaintiff was at the place of delivery at the time agreed for delivery, ready, willing and prepared to pay the balance due and accept delivery of 285 five-year-old ewes meeting the conditions of the contract, but that defendants failed and refused to offer him such ewes at the time of delivery or at any other time.
Plaintiff alleged and testified that there was an advance in the price of ewes such as those contracted for of approximately sixty cents per head between the time the contract was entered into and the time of delivery. On the other hand, defendants alleged and testified that the price had declined and they were compelled to sell at a loss which, combined with the expense incident to caring for the sheep, shipping them from Miles City to Columbus and reselling constituted the amount demanded by their counterclaim. Another witness who was running sheep with the Lloyd band testified that his sheep were cut out of the Lloyd band at the time the Lloyd sheep were delivered to the defendants, and that his sheep and Lloyd's ran about the same in ages, from three to sixes, and that ewes of the kind plaintiff had contracted for had advanced in price from September 21, the date of the contract, to October 5 and were selling from $4 to $4.50 per head; and that he sold some sixes that day to a person he named, at $3.60 per head. Defendants' witnesses testified that the sheep offered to plaintiff were five-year-old ewes. Both defendants, however, admitted that there were from 30 to 50 six-year-old ewes in the lot of 310 out of which plaintiff was offered the 285 his contract called for.
Lloyd, a witness for the defendants, testified that he did not "mouth out" the sheep the day of delivery, but turned over 1,020 to defendants, received pay for 1,008, 12 head being "thrown in;" that he raised about 700 of the sheep and bought the others. He classified the ages as "about" as follows: Eighty twos, five hundred threes, the rest fours or fives, except 30 to 50 sixes. In cutting the sheep out according to ages, the defendant Stewart testified that there was no distinction made between fives and sixes in marking; he further testified that the twos and threes were marked the same. It, therefore becomes clearly obvious that the defendants did not offer to deliver to the plaintiff 285 five-year-old ewes, and defendants are defeated by their own testimony. If there were 30 six-year-old ewes in the lot of 310 to which plaintiff was restricted in selecting his 285, the defendants' offer of delivery was five head short of the number and kind of ewes covered by the contract according to defendants' own classification as to ages, and if there were 50 ewes in the lot of 310 six years old or older, the offer was 25 head short of the number of fives offered for delivery.
All testimony was to the effect that six-year-old ewes are undesirable ewes, and that even five-year-olds are classed as aged sheep, facts well known to all sheepmen. In addition to the controversy about the age of the sheep defendants offered to deliver, the contract provides the sheep shall "be in good merchantable condition;" that none of the ewes shall be "diseased, cull, loco, crippled, wrinkled bodies, ruptured or shelly." That toothless ewes are not in "good merchantable condition" is a matter of common knowledge, and that there were culls in the lot is obvious from the fact that Lloyd presented 12 head of the lot of 310 to the defendants as a present and referred to them in his testimony as culls. In short, the 310 out of which plaintiff was offered his 285 contained not only the 12 culls Lloyd delivered to the defendants without cost, but all other ewes out of the band of 1,020 that were left after other purchasers had taken their choice.
Returning now to the verdict: The jury say that they find the "issues" in favor of the plaintiff, but say nothing about refunding the payment of $285 made by the plaintiff when the contract was entered into. It thus becomes necessary in order to determine the merits or demerits of plaintiff's assignments of error to determine what issues were raised by the pleadings.
Defendants admit in the cross-complaint that $285 was paid on the sheep at the time the contract was entered into, hence the payment of that amount by the plaintiff to the defendants is not in issue. Frank v. Symons, 35 Mont. 56, 88 P. 561; Russell v. Chicago, Burlington & Quincy Ry. Co., 37 Mont. 1, 94 P. 488, 501. The right of the plaintiff to recover the $285 however is in issue, and this issue, together with the issue as to whether plaintiff suffered damages by defendants' alleged breach of the contract and in the amount thereof, are the two issues made by plaintiff's pleadings. In addition, defendants' affirmative defense being denied by the reply, raised the issue of defendants' damages by reason of plaintiff's alleged breach of contract. These three issues are all that were raised in the pleadings by either party.
Issues of fact are for the jury unless a jury be waived Sec. 9327, Rev.Codes. Section 9323, Revised Codes, provides:
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