Hughes v. Atkinson
| Decision Date | 10 June 1961 |
| Docket Number | No. 42300,42300 |
| Citation | 188 Kan. 413,362 P.2d 618 |
| Parties | , 94 A.L.R.2d 309 David M. HUGHES, Martha M. Hughes, Carol A. Jory and Deborah A. Hughes, Trustees, Doing Business under the Trade Name and Style of Mulvane Ranch, by its Agent, David M. Hughes, Appellees, v. Frank W. ATKINSON and Henry C. Hitch, a Co-partnership, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rights, duties and obligations of parties under the terms of an agistment contract, such as is set forth in the opinion, considered, discussed and applied.
2. Plaintiffs brought an action on the agistment contract to recover money alleged to be due for pasturing the defendants' steers. Defendants' answer and cross-petition denied liability under the contract and claimed damages for plaintiffs' alleged negligence in caring for such animals. Plaintiffs' reply and answer to the amended answer and cross-petition contained a general denial and otherwise joined issues on all questions raised by that pleading. When the case came on for trial the parties stipulated that the only issues to be tried were those issues of set-off and counterclaim as alleged in the amended answer and cross-petition and in the reply and answer to the cross-petition; and that, except for such issues, judgment should be entered in favor of plaintiffs in accordance with the prayer of their petition. After a trial of the issues involved under the stipulation the jury returned a general verdict along with its answers to submitted special questions and judgment was entered accordingly. Defendants then perfected the instant appeal wherein they complain of error in the instructions. The record is examined and it is held that, under the facts, conditions and circumstances set forth and described in the opinion, the trial court (1) committed no reversible error in connection with the instructions given or in refusing to give requested instructions and (2) did not err in overruling a motion for a new trial or in rendering judgment in accord with the verdict.
Wayne Coulson, Wichita, argued the cause, and Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gorrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, and Hugo T. Wedell and Homer v. Gooing, of counsel, Wichita, were with him on the briefs for appellants.
Emmet A. Blaes, Wichita, argued the cause, and John E. Wheeler, Marion, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Stanley E. Wisdom, Vincent L. Bogart, Cecil E. Merkel, John W. Brimer, Harry L. Hobson, Bruce W. Zuercher, and Terrance J. Muth, Wichita, were with him on the briefs for appellees.
This was an action to recover a balance alleged to be due the plaintiffs under the terms of a written agistment agreement, whereby they leased the defendants the 11,000 acre Mulvane Ranch, located in Chase and Morris Counties, Kansas, for pasturage purposes and subsequently pastured 2003 head of defendants' cattle (steers) in such pasture during the 1958 pasture season.
No issue is raised regarding the pleadings. Therefore reference thereto will be brief and the allegations thereof when mentioned, except for one particular, will be highly summarized.
The amended petition, which includes a copy of the contract, contains all allegations required to state a cause of action against the defendants for recovery of the balance of $3,750.74, alleged to be due and payable under the terms of that agreement, for the number of defendants' steers pastured on the Mulvane Ranch during the 1958 season.
The contract attached to the amended petition is important and pertinent portions thereof should be detailed. Limited as indicated, such agreement reads:
'This Contract made and entered into March 15, 1958, by and between Mulvane Ranch, by its agent, David M. Hughes (Los Angeles, California), Party of the First Part, and Frank W. Atkinson of Burdick (Morris County), Kansas and Henry C. Hitch of Guyman, Oklahoma, Parties of the Second Part.
'Witnesseth: * * *, said parties hereby agree as follows: * * * First Party agrees to lease * * * Second Parties the pasture known as Mulvane Ranch * * * containing Eleven Thousand * * * acres, more or less, for the sum of Forty Thousand * * * Dollars.
'* * * Second Parties agree to stock said pastures with not less than Two Thousand * * * steers * * * Second Parties agree to pay * * * First Party at the rate of Twenty * * * Dollars per head for all steers in excess of Two Thousand head so stocked.
'* * * Second Parties agree to deliver to * * * First Party between April 24, 1958, and June 1, 1958, said * * * cattle at the stock yards, at Rockland, Kansas, to be pastured by said First Party not later than October 15, 1958.
* * *
* * *
'* * * Second Parties agree to pay * * * First Party for pasturing, salting, watering, and caring for said cattle Twenty * * * Dollars per head, or until the amount of Forty Thousand * * * Dollars has been paid and to pay in addition at the rate of Twenty * * * Dollars per head for all steers in excess of Two Thousand * * * head as the steers are shipped to market, or delivered to the owner; * * *.'
Defendants' amended answer denies all allegations of the amended petition not specifically admitted; admits the allegations contained on page 1 of that pleading and those on page 2, except the last paragraph thereof; asserts Keith W. Gibb was acting within the scope of his authority as agent of the plaintiffs; states the defendants orally instructed the plaintiffs to keep three groups of cattle, therein identified, separated, to maintain the division and 'trap' fences and gates in proper repair, and to separate 'bullers' from other cattle; and then alleges that in caring for the steers mentioned in the petition plaintiffs were guilty of nine specific acts of negligence which resulted in the loss of several steers and in the loss of an average gain in the remainder, all of these damages resulting in a loss to defendants in an amount of money, which was far in excess of the unpaid balance claimed by plaintiffs in their petition to have been due under the contract.
Defendants also included in their amended answer a cross-petition wherein they made the allegations of the amended answer a part thereof and then, by way of counterclaim, prayed that they recover judgment for the amount of damages therein claimed to have been sustained by reason of plaintiffs' alleged negligence.
For all purposes here pertinent it may be stated the plaintiffs' reply and answer to the amended answer and cross-petition contained a general denial and otherwise joined issues on all questions raised by that pleading.
With issues joined as indicated the case came on for trial in the district court of Morris County, whereupon counsel for the respective parties announced in open court that the only issues to be tried were those issues of set-off and counterclaim as alleged in the amended answer and cross-petition of defendants and in the reply and answer to the amended cross-petition of the plaintiffs. It was further stipulated that, except for such issues, judgment should be entered in favor of plaintiffs in accordance with the prayer of their amended petition.
Thereupon a jury, which we take note was composed of jurors from the flint hills--blue stem pasture area of Kansas, was duly empaneled and sworn to try the cause. The defendants then introduced their evidence in support of their cross-petition as amended and rested, whereupon the plaintiffs demurred to such evidence. When this demurrer was overruled the plaintiffs introduced their evidence in defense and rested. Defendants then introduced their rebuttal evidence and rested.
Thereafter the court instructed the jury in writing, counsel for both sides presented oral argument and the jury was permitted to retire to the jury room to commence its deliberations, taking with it special questions which had been submitted by the court. Subsequently the jury returned with a general verdict for the plaintiffs and against the defendants, together with three of the submitted special questions and its answers thereto which read:
steers had any habits, characteristics, or conditions which imposed any extra burdens on the plaintiffs in caring for them and which were not reasonably included or anticipated in the agistment contract.
'Answer: Yes.
manager Bill Gibb informed the defendants with reasonable promptness of any unusual habits, characteristics or conditions of which the defendants did not already have knowledge.
'Answer: Yes.
'3. State whether the defendants knew or should have known that their implantation of the steers with stilbestrol would create a problem in caring for the steers which would not ordinarily be encountered or anticipated by an agister.
'Answer: Yes.'
Special questions 4 and 5, as submitted by the trial court, were returned by the jury unanswered for the reason that question 4 required no answer unless question 3 had been answered by the jury in the negative and question 5 did not call for any answer unless the jury by its general verdict allowed, which it did not, the defendants damages, as claimed in their amended answer and cross-petition.
Following rendition of judgment in accord with the verdict defendants...
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