Goldberg v. Miller

• Decision Date: 21 September 1939
• Docket Number: 2103
• Citation: Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947 (Wyo. 1939)
• Parties: GOLDBERG v. MILLER ET AL
• Court: Wyoming Supreme Court

93 P.2d 947

54 Wyo. 485

GOLDBERG v. MILLER ET AL

No. 2103

Supreme Court of Wyoming

September 21, 1939

Rehearing Denied December 12, 1939, Reported at: 54 Wyo. 485 at 499.

APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.

Action by Jack Goldberg against Sam Miller and Joe Miller & Company a co-partnership, consisting of Joe Miller and Isadore Miller, to recover a sum of money which the plaintiff allegedly was deprived of by fraud while engaged in a joint adventure with the defendant Sam Miller. From a judgment for the plaintiff, the defendant Sam Miller appeals. Rehearing denied December 12, 1939--see 96 P.2d 570.

Reversed with instructions.

For the defendant and appellant, there was a brief and oral argument by John C. Pickett of Cheyenne.

The pleadings and evidence introduced by plaintiff were insufficient to sustain the judgment. Allegations of fraud must be established by clear and convincing evidence. 12 C. J. 639; Bank v. Company (Utah) 10 P.2d 1065; Brown v. Citizens National Bank, 269 P. 40; Patterson v. Lee-Clarke-Andreesen, 7 Wyo. 401; Hanson v. C. B. & Q. R. R., 32 Wyo. 337, 232 P. 1101; Wallace v. Skinner, 15 Wyo. 233, 88 P. 221. An instruction requiring clear and convincing proof is simply stating that the preponderance of evidence must be definite, clear and convincing. Williams v. Yokum, 37 Wyo. 443, 263 P. 607. Fraud will not be imputed to any party when the facts and circumstances may be consistent with honesty of intention. Smith v. Stone, 21 Wyo. 62, 128 P. 612. Facts must be alleged sufficient to show fraud. Hair v. Insurance Agency, Inc., (Wash.) 51 P.2d 398. Unlawful conspiracy should not be inferred from acts and circumstances which are in themselves lawful and consistent with an honest purpose. Rouse v. Equitable Savings and Loan Association (Ore.) 50 P.2d 763; Keller v. Commercial Credit Co., 149 Ore. 372, 40 P.2d 1018; Warren v. DeLong (Nev.) 60 P.2d 608; Ramsey v. Powers (Calif.) 241 P. 567. The proof in this case fails to show fraud. A transfer of property to a relative is not in itself fraudulent, and the burden of proof is upon the person alleging fraud. 27 C. J. 790; Gottlieb v. Thatcher, 38 L.Ed. 157; American Company v. Hall (Ill.) 70 N.E. 581. Plaintiff's proof of market value was insufficient. Davis v. Graham, 31 Wyo. 255; Shikany v. Salt Creek Transportation Company, 45 P.2d 645. The plaintiff was not entitled to interest unless fixed by the verdict. 33 C. J. 1177.

For the respondent, there was a brief and oral arguments by Walter Q. Phelan and Clyde Zachman of Cheyenne.

The instruction offered by appellant and refused by the court was unnecessary and not justified by evidence in the case. Plaintiff followed the rule expressed in Davis v. Graham, 31 Wyo. 255, in proving market value. Plaintiff's petition stated a cause of action. 47 C. J. 771, 783; 27 C. J. 28. Defects in pleadings may be waived by failure to make seasonable objections. Johnson v. Spencer (Nebr.) 70 N.W. 982; Du Souchet v. Dutcher (Ind.) 153 N.E. 95; Mann v. Taylor (Iowa) 43 N.W. 220. There was evidence to support the verdict. If a plaintiff fails in proof of an alleged conspiracy, he may recover damages against one or more defendants shown to be guilty of the tort. 12 C. J. 585. Cooley on Torts, 3d Addition, p. 213; McClintock v. McClure, 171 Ken. 714, Ann. Cases 1918E, p. 96; Gordon v. McLearn (Ark.) Ann. Cases 1918A, p. 482; Pyles v. Armstrong (Mont.) 275 P. 753; Dahlquist v. Mattson (Idaho) 233 P. 883; Rickel v. Exchange (Kan.) 215 P. 1015; Felt v. Westlake (Okla.) 174 P. 1041; Bank v. Gas Company (Wash.) 168 P. 18; Siemon v. Finkle (Cal.) 213 P. 954; Moropoulas v. Fuller Company (Cal.) 200 P. 601; 12 C. J. 644; 47 C. J. 771.

Before Riner, Chief Justice; Kimball, Justice; and Ilsley, District Judge. RINER, C. J., and KIMBALL, J., concur.

OPINION

ILSLEY, District Judge.

This is a direct appeal from a judgment in the sum of $ 801.01, entered after a verdict of the jury was returned in favor of plaintiff and respondent against the defendant and appellant, Sam Miller.

There are some twenty-three specifications of error set forth herein, but counsel for the appellant state, "It has been concluded to present only those specifications which go to the sufficiency of plaintiff's pleading and proof." Counsel waive all other alleged errors. We agree with counsel that this may be done.

Other matters at issue between plaintiff and other defendants have been disposed of in the court below and are not to be considered here.

Briefly, the pleadings disclose as follows: It is alleged in plaintiff's petition that plaintiff and Sam Miller were partners in buying and selling livestock. Plaintiff purchased 150 three-year-old steers, known as the Griffin steers, to be delivered to said co-partnership on August 15, 1937, at LaGrange, Wyoming. Thereafter, the defendant, Sam Miller, without the knowledge or consent of the plaintiff and contrary to the expressed agreement, fraudulently and deceitfully, contracted and conspired with the other defendants for the purpose of cheating and defrauding plaintiff to sell the steers for $ 8.10 per hundred weight, when, in truth and in fact, said steers were actually of the market value of $ 10.00 per hundred weight, thereby injuring the plaintiff in the sum of $ 1500.00, and he prays for judgment for his pro rata share of the market value of the 150 steers, estimated at $ 1500.00.

The defendant, Sam Miller, by his amended answer denies the allegation of co-partnership and other matters, and states his version as follows: That plaintiff and defendant, Sam Miller, were to purchase for Joe Miller and Company the 150 head of three-year-old Griffin steers at $ 8.00 per hundred weight and were to receive for their services the sum of ten cents per hundred weight profit for making the purchase. That a purchase agreement was entered into for the Griffin steers in the name of Sam Miller for the benefit of the defendant, Joe Miller and Company, at eight cents per pound, the steers to be delivered at LaGrange, Wyoming, on the 15th day of August, 1937. The steers were delivered and weighed 147,190 pounds, and the defendant, Joe Miller and Company, furnished all the money. The amended answer alleges that the sum of $ 147.19 has not been paid to the plaintiff and defendant Sam Miller. That after the purchase of the cattle in the name of Sam Miller and at the request of Joe Miller and Company, the following written memorandum was obtained and delivered to Joe Miller and Company for the purpose of placing the original agreement in writing and completing the contract of purchase which was in the name of the defendant, Sam Miller, to-wit:

"July 12, 1937

"We have this day sold to Joe Miller and Company the J. H. Griffin and Brothers steers contract at ten cents per hundred weight profit.

(Signed) Sam Miller

Jack Goldberg."

The defendant, Sam Miller, prays that plaintiff's petition be dismissed.

Plaintiff in his reply denies these matters, as set up, and alleges that the defendants were to pay plaintiff for his services in locating and purchasing the steers at LaGrange, Wyoming, on August 15, 1937, one-half of a sum of money equivalent to one cent per pound of the aggregate weight of the said steers at LaGrange, Wyoming, on August 15, 1937. The other one-half of such sum was to go to the defendant, Sam Miller. That at such time and place, the steers weighed 147,190, and therefore, defendants were indebted to plaintiff in the sum of $ 1,471.90. On July 12, 1937, which is the date of the memorandum referred to in the answer, the defendant Sam Miller advised plaintiff of the sale of certain cows purchased from J. H. Griffin and Bros. at the same time as the purchase of the Griffin three-year-old steers referred to in the pleadings and that Sam Miller presented to the plaintiff certain documents concerning the sale of the cows and represented that plaintiff's signature was necessary in connection with the sale of the cows, and plaintiff, believing the statements of Sam Miller, signed the memorandum, believing it to be a part of the transaction in regard to the sale of the cows. Plaintiff further replying states that the memorandum referred to by the defendant, Sam Miller, in his amended answer was obtained by fraud and deceit, and was a part of a conspiracy entered into between Sam Miller and Joe Miller and Company to defraud the plaintiff.

The evidence introduced on the trial shows that while the defendant Sam Miller disputes there was a partnership, it is really immaterial because if the arrangement did not constitute a partnership, at least it was a joint adventure and the relationship of coadverturers is controlled largely by the law of partnership, although the two are not identical. See Hoge v. George, 27 Wyo. 423, 200 P. 96, and Fried v. Guiberson, 30 Wyo. 150, 217 P. 1087.

An analysis of the evidence shows that Goldberg and Sam Miller undoubtedly made arrangements to buy the 150 three-year-old Griffin steers with the idea of making some kind of a profit and dividing it between them. They bought the steers, entering into a written memorandum of purchase with the owners, the material portion thereof being as follows:

"July 8-1937

"Sold to Sam Miller one hundred and fifty of the best three year steers for eight cents per pound to be delivered the fifteenth day of August 1937 and weight at Lagrange Wyoming U. P. stockyards with three per cent shrink the above steers are not to have feed or water on the road after leaving the Preston ranch until efter the are weighed on arrival at U. P. stockyards Lagrange Wyoming."

The money paid on the contract was obtained by Sam Miller by drawing a draft on Joe Miller and Company of Denver, a financial arrangement by...