Halver v. Higgins Sheep Commission Co.
| Decision Date | 17 March 1920 |
| Docket Number | 32255 |
| Citation | 176 N.W. 713,188 Iowa 806 |
| Parties | C. P. HALVER, Appellee, v. HIGGINS SHEEP COMMISSION COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.
ACTION on a written contract, to recover the agreed purchase price of certain lambs delivered by the plaintiff to the defendant pursuant to such contract. The answer of the defendant admitted the execution of the contract, but averred that the contract itself did not express the real agreement of the parties, in that the same should have contained an undertaking and guaranty on the part of the plaintiff of the weights of the lambs to be delivered, and that such provision was omitted by oversight, and that the same should now be reformed. Defendant avers a breach of the terms of the contract, as thus reformed. It prays a reformation and a judgment on counterclaim or cross-bill. The cause was tried in equity. The district court entered a decree for the plaintiff, substantially as prayed, and dismissed the cross-bill. The defendant has appealed.
Affirmed.
E. A Burgess and Fred H. Free, for appellants.
Henderson Fribourg & Hatfield, for appellee.
I.
The defendant Joshua W. Higgins operates under the trade name of Higgins Sheep Commission Company, and is engaged in the business indicated by such trade name, in Sioux City. The plaintiff is a real estate man, engaged also in the business of buying and selling sheep. He was a resident of Flandreau, South Dakota. The contract sued on was one of two contracts, made at the same time, and pursuant to the same negotiations. They are both identical in all their terms, except that one called for a delivery of 2,200 lambs on September 1, 1916, and the other called for a delivery of 2,500 lambs, on September 25, 1916. Under the first contract, known in this record as Exhibit 13, the lambs were delivered on September 1st, and paid for. Under the other contract, the lambs were delivered on September 25th, but were not paid for. Plaintiff's suit is predicated upon this contract, known in this record as Exhibit A.
The defendant's cross-bill, however, treats both contracts as one, and asks to reform them both, and for relief under them, as so reformed. The general nature of defendant's contention is that the plaintiff agreed to guarantee a general average weight of all the lambs at 50 pounds, and a considerable percentage thereof at 60 pounds. This contention is denied by the plaintiff. If the defendant's contention at this point is sustained by the record, he is entitled to the reformation prayed, and to the consequent relief. If defendant is not entitled to such reformation, the plaintiff is entitled to recover, in accord with the strict terms of the contract sued on. Exhibit A is as follows:
per
1916, Hettinger and
Head
Griffin, N. D. In proportion
to total number
loaded at both places.
These lambs not to be sorted,
or topped out for mutton.
(Signed) C. S. Halver."
We need not set out Exhibit 13, which is identical, except as to number of lambs (2,200) and date of delivery (September 1st). The negotiations which resulted in these contracts began on the morning of August 19th, and continued up to the time of their consummation, August 25th. One week later, delivery was made, under Exhibit 13. These negotiations were initiated by certain telegrams, as follows:
Pursuant to the last telegram, W. M. Baker, employee of the defendant, arrived at Lemmon, South Dakota, August 19th, and started upon an inspection of the lambs owned by plaintiff, under executory contracts for future delivery; and such inspection continued for a period of 5 days. Baker was a man of 17 years' experience in the business. Halver was the owner of 18,000 or 20,000 lambs, in the sense that he had entered into contracts of purchase to that extent with sheep owners, who were to deliver to him on September 1st and September 25th. The lambs thus contracted for were still in the custody of their original owners, and could be inspected in the separate flocks, respectively, of such original owners. There was a large number of these flocks, covering an extended territory in both South and North Dakota. The parties traveled by automobile from one flock to another, and Baker went through each flock, for the purpose of forming a judgment as to the quality and value of the lambs therein. One V. E. Baker also made the same trip with the parties, and conducted an inspection in his own behalf, as purchaser of the ewes of the same flocks. To avoid confusion, we shall use the initials of V. E. Baker, whenever reference to him is made. When initials are not used with the name Baker, reference will be had to W. M. Baker, the agent of the defendant herein. Baker completed his inspection August 23d, and the parties returned the same evening to Lemmon, South Dakota. In the meantime, he had sent to his principal one or more telegrams. On the morning of August 24th, he mailed to his principal the following letter, known in this record as Exhibit F.
On the same date, Baker received from his principal the following telegram, known in the record as Exhibit 8:
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Halver v. Higgins Sheep Comm'n Co.
... 188 Iowa 806 176 N.W. 713 HALVER v. HIGGINS SHEEP COMMISSION CO. ET AL. No. 32255. Supreme Court of Iowa. March 17, 1920 ... Appeal from District Court, Woodbury County; George Jepson, Judge. Action on a written contract to recover the agreed purchase price of certain lambs delivered by the plaintiff to the defendants pursuant to such contract. The ... ...