Hunt v. S Y Cattle Co.

• Court: Montana Supreme Court
• Writing for the Court: STARK, J.
• Citation: Hunt v. S Y Cattle Co., 75 Mont. 594, 244 P. 480 (Mont. 1926)
• Decision Date: 16 March 1926
• Docket Number: 5852.
• Parties: HUNT et al. v. S Y CATTLE CO.

244 P. 480

75 Mont. 594

HUNT et al. v. S Y CATTLE CO.

No. 5852.

Supreme Court of Montana

March 16, 1926

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Action by Sherman Hunt and another, copartners operating under the firm name and style of Hunt & White, against the S Y Cattle Company. From a judgment for part of the amount claimed plaintiffs appeal. Reversed and remanded, with directions to grant plaintiffs a new trial.

Loud & Leavitt, of Miles City, for appellants.

D. L O'Hern, of Miles City, for respondent.

STARK J.

The plaintiffs, copartners under the name of Hunt & White brought this action against the defendant, a corporation, to recover the sum of $5,346.15, alleged to be due them for running, pasturing, and grazing certain cattle for the defendant on their range in Custer county.

The complaint alleges that between April 1, 1923, and June 15 1923, the defendant turned over to plaintiffs 2,300 head of cattle, under an agreement that they were to be grazed and cared for by them until the 15th day of October, 1923. Before the cattle were turned over to the plaintiffs, the parties had a verbal agreement concerning them which was subsequently reduced to a written contract and duly executed on June 29, 1923. Among other things, this contract provided that the cattle should be rounded up for redelivery to the defendant whenever it wished, provided, however, that they should all be gathered up and redelivered not later than October 15, 1923.

It is alleged that all of said cattle were rounded up, gathered, and ready for delivery to defendant prior to October 15, 1923, and the charges for the care of all of them, except 22 head of cows and 158 head of steers, duly paid, and the balance due to plaintiffs for the grazing of these cows and steers under the contract of June 29, 1923, is alleged to be $339.40. The complaint then sets out:

"That at the time the said cattle were rounded up and gathered as aforesaid, and on or immediately prior to the 15th day of October, A. D. 1923, it was further agreed by and between the defendant corporation and the plaintiffs that, in addition to the 22 head of cows, which are hereinbefore referred to, the plaintiffs were to retain 865 head of said cattle, and which, together with the 22 head of cows, were to be run, cared for, pastured, and grazed by the said plaintiffs for the said defendant from October 15, 1923, in accordance with said agreement made on or about October 15, A. D. 1923, aforesaid, and as is hereinafter alleged."

And in the next paragraph says:

"That under and by virtue of the said agreement, made and entered into on the 15th day of October, A. D. 1923, it was expressly understood and agreed between the plaintiffs and the defendant corporation that the plaintiffs should continue to run, care for, pasture, and graze the said 865 head of cattle and the 22 head of cows."

Following which allegation the other terms of the contract are stated, including the length of time it was to continue, the method of gathering the cattle, the compensation to be paid and the time of payment, and that under said contract the plaintiffs did run, care for, pasture, and graze the 22 head of cows from October 15, 1923, to January 15, 1924, and 865 head of cattle from October 15, 1923, up and including the 1st day of October, 1924. The facts showing plaintiffs' compliance with all the terms, provisions, and conditions of the contract of October 15, 1923, are set out in detail, and judgment is asked against the defendant for the sum of $339.40, alleged to be due under the original contract, and $5,006.75, alleged to be due under the contract of October 15, 1923, with interest.

The defendant's answer admitted the contract of June 29, 1923, and that it agreed to pay the plaintiffs for the running, caring for, pasturing, and grazing of 2,300 head of cattle until the termination of said agreement, as alleged in the complaint, alleged that prior to October 15, 1923, approximately 2,120 head of cattle were rounded up ready for delivery to the defendant, and that the full amount due to the plaintiffs for the running, pasturing, and grazing thereof was paid to the plaintiffs, and denied all the other allegations of the complaint.

The cause was tried to a jury. To sustain the allegations of their complaint, the plaintiffs introduced evidence tending to establish the fact that, under the written contract of June 29, 1923, there was due to them from the defendant the sum of $339.40 for the grazing of the 22 head of cows and 156 head of steers.

With reference to the transactions between the parties after the expiration of the term of the written agreement of June 29, 1923, the plaintiff Sherman Hunt testified that, prior to the round-up of the cattle in October, 1923, for delivery to the defendant, as provided in the written contract, he had a conversation with one Colvin, the manager of the defendant, in which the latter said he wanted the plaintiffs to keep about 1,000 head of steers for another year, but no final arrangements were then made; that some time between the 1st and the 15th of October, 1923, when plaintiffs and defendant were engaged in rounding up the cattle, with their headquarters near the head of Spring creek, the witness sent for Colvin to come over and complete the arrangements for keeping the cattle mentioned in the previous conversation between them. The manager came over as requested, and stated that the defendant did not have feed for the cattle at the home place, and thereupon it was agreed between these parties that the plaintiffs should keep the portion of the cattle to be selected by the plaintiff and a representative of the defendant company, as the ones that would winter there on plaintiffs' range; that for such services the plaintiffs should receive 50 cents per head per month, $1 per head to be paid in advance, $1 per head on January 1, 1924, and on May 29, 1924, all that was then earned was to be paid, and that the balance should be paid when final delivery of the cattle was made to the defendant.

The plaintiffs were also running certain cattle on their range known as the S H cattle, and it was agreed that the cattle left on the range by the defendant under this last mentioned arrangement should be rounded up at the time the S H beef cattle were rounded up the following year. This witness also testified to other details of the agreement, and stated that immediately following the arrangement he and the defendant's manager went to the plaintiff White, who was at a corral about 40 feet distant, recited to him the agreement which they had made, and that he then assented thereto. This witness then detailed the rounding up of the cattle, the selection by representatives of the parties of the ones which were to be turned back and kept by the plaintiffs under the new arrangement, and facts tending to show that plaintiffs had complied therewith, but that defendant had not paid them therefor.

On the cross-examination of this witness, referring to the oral agreement of October, 1923, the following questions were asked and answers given:

"Q. You saw Mr. Colvin quite often subsequently to the entering into this oral contract; was anything ever said about reducing the terms of the oral agreement to writing? A. Yes, sir. Q. And did you have any agreement that it would be reduced to writing? A. We did. Q. Where was that agreement made? A. At the head of Spring creek. Q. What was said about reducing the oral agreement to writing? A. We would just put this agreement into writing as soon as the round-up was over and we found out how many cattle that there was that was left with us, and it was convenient for us to meet in town."

The plaintiff White, called as a witness, corroborated the testimony of the plaintiff Hunt, and other testimony was given tending to show plaintiffs' complete performance of the agreement of October 15, 1923.

At the close of plaintiffs' testimony, counsel for defendant made the following motion:

"Comes now the defendant and moves the court to strike all testimony in the record in relation to any conversations, transaction, contract, or agreement in relation to the running of any live stock by the plaintiffs for the defendant on or subsequent to the 15th day of October, 1923, * * * for the reason that it appears from the uncontroverted testimony of both Sherman Hunt and Smith White, the plaintiffs in this action * * * that said alleged agreement of, on or about October 15, 1923, * * * was to be reduced to writing and signed and executed by the respective parties to said proposed written agreement, to wit, Sherman Hunt and Smith White, and the said S Y Cattle Company by Ben Colvin, its manager, * * * that it further appears that said agreement was never reduced to writing as contemplated by the respective parties to the proposed contract, and therefore the plaintiffs cannot recover under the said alleged contract for the reasons hereinbefore recited,"

-which motion was sustained.

The defendant did not introduce any evidence. The case was submitted to the jury, which returned a verdict in favor of plaintiffs for $339.40, upon which judgment was entered. Plaintiffs moved for a new trial, which was denied, and they have appealed from the judgment.

Counsel for the plaintiffs have made eight assignments of error in their brief, the first of which is that the court erred in sustaining defendant's motion to strike out all of the testimony relating to the oral agreement had on, or immediately prior to, October 15, 1923. The other seven relate to the giving or refusal to give certain instructions but all are dependent upon and grow out of the legal questions involved in the first assignment, so they will all be...