Jim's Water Service, Inc. v. Alinen

• Decision Date: 28 March 1980
• Docket Number: No. 5211,5211
• Citation: 608 P.2d 667
• Parties: JIM'S WATER SERVICE, INC., a Wyoming Corporation, Appellant (Defendant), v. Larry ALINEN, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 667

608 P.2d 667

JIM'S WATER SERVICE, INC., a Wyoming Corporation, Appellant (Defendant), v. Larry ALINEN, Appellee (Plaintiff).

No. 5211.

Supreme Court of Wyoming.

March 28, 1980.

H. W. Rasmussen (argued) of Badley, Rasmussen & Shoumaker, Sheridan, for appellant.

John W. James (argued) and John A. Zebre, Rock Springs, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

After a trial to the court, a judgment was entered in favor of plaintiff-appellee, the trial court having found generally in his favor on both his complaint and defendant-appellant's counterclaim. Appellant and appellee orally agreed that appellant would sell a White tractor truck to appellee with the purchase price to be paid from one-half of the amount earned by appellee through use of the truck in appellant's business, such use to be compensated at the rate of $18.00 per hour. After the truck was so used for about eight months, appellee returned it to appellant, contending he did so under an agreement with appellant that appellant would return the payments already made toward purchase of it. Appellant contended that the return of the truck was a breach of the contract. The pleadings of each party alleged breach of contract and unjust enrichment by the other. We affirm.

There was a direct conflict of material facts concerning the terms of the contract (for example, appellant contends the purchase price was $27,000 plus 12% interest and appellee contends it was $24,000), and concerning the alleged breaches or termination of it.

The trial court made the following findings among others: The oral agreement for sale of the truck was for a total price of $24,000 without interest. Appellant was to pay for the PSC permit, road taxes and fuel. Appellee was to pay for the repairs and drivers' salaries. Under the agreement by which appellee was to pay 50% of the gross earnings of the truck from use on appellant's business, and allowing for repair deductions, $18,274.34 was paid by appellee toward the purchase price. In August 1977, appellee orally offered to pay the balance of the purchase price and appellant refused to accept it. Appellee had performed all conditions to be performed by him under the contract as of that time. Then appellant orally told appellee that if he would return the truck, appellant would refund "what Alinen (appellee) had in it." The truck was returned. Appellant sold the truck to a third party for $24,000 or $24,500. The trial court made other findings which concern other issues raised in the case but which were not presented on appeal.

Although appellant directs our attention to the fact that some of the findings of the trial court were directly contrary to some of the testimony, there was other substantial evidence to support each of the findings, and the trial court referred to such other evidence in its opinion letter.

In Sagebrush Development, Inc. v. Moehrke, Wyo., 604 P.2d 198 (1979), we quoted the following from Douglas Reservoirs Water Users Association v. Cross, Wyo., 569 P.2d 1280, 1283 (1977):

" 'In matters of evidence on review, we apply the monotonously-repeated rule that an appellate court must assume evidence in favor of a successful party to be true, leave out of consideration the conflicting evidence of the unsuccessful party and give the evidence of the successful party every favorable inference which may be reasonably drawn from it. * * * ' " 604 P.2d at 200.

Oral contracts often present the necessity for factual determinations in addition to those necessary in controversies over written contracts. " * * * 'Ordinarily, the construction or legal effect of a contract must be determined by the court as a question of law' * * *." Goodson v. Smith, 69 Wyo. 439, 468, 243 P.2d 163, 176 (1952), reh. den. 69 Wyo. 472, 244 P.2d 805 (1952); United States v. Nickel, 10th Cir. 1957, 243 F.2d 924; Engle v. First National Bank of Chugwater, Wyo., 590 P.2d 826 (1979). However, whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. International Glass Co. v. Krouse, 3rd Cir. 1922, 282 F. 206; Solomon v. Luria, 213 Pa.Super. 87, 246 A.2d 435 (1968); Panko v. Advanced Appliance Service, 55 Ill.App.3d 301, 13 Ill.Dec. 308, 371 N.E.2d 3 (1977). Of course, the determination of the legal effect of an oral contract is a question of law. Stagner v. Staples, Mo.App., 427 S.W.2d 763 (1968); McCormack v. Jermyn, 351 Pa. 161, 40 A.2d 477 (1945). And when there is no conflict in the evidence as to the terms of the oral agreement, or the words of the oral agreement can have but one meaning, construction of the agreement is one of law for the court's determination in the same manner as that of a written contract. Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975); Walton v. Piqua State Bank, 204 Kan. 741, 466 P.2d 316 (1970); Van Ruiten v. Van Ruiten, 268 Cal.App.2d 619, 74 Cal.Rptr. 186 (1969).

We have already noted that there was substantial evidence to support the findings of fact made by the trial court. When such evidence exists, we will not disturb the findings on appeal. LeBar v. Haynie, Wyo., 552 P.2d 1107 (1976); Roberts Construction Company v. Vondriska, Wyo., 547 P.2d 1171 (1976).

Appellant argues four propositions:

1. "The district court erred in finding that the parties had terminated their sales contract and formed a new contract for the return of the truck and payment of the money retained by the appellant, defendant, Jim's Water Service, Inc."

2. "Jim's Water Service, Inc. was not in default on the original oral contract, the appellee, on the other hand, did not perform, was unable to perform and rescinded the contract."

3. "Even if the appellant should make restitution to the appellee, the appellant is entitled to an offset for reasonable rental value and other economic factors which specifically went to the benefit of the appellee."

4. "The district court erred in not recognizing that the appellee was in default and improperly failed to grant appellant damages for breach of contract."

Much of appellant's argument challenges the findings of fact made by the trial court. As indicated, such findings were supported by substantial evidence. Therefore, we will not further address these challenges, but will restrict our further consideration to the allegations of errors of law which are contained within appellant's arguments.

CONTRACT STATUS

Propositions numbered 1, 2, and 4 argued by appellant involve the question of the status of the contract or contracts. In proposition No. 1, appellant refers to error in finding the contract terminated. In proposition No. 2, appellant alleges that appellee "rescinded" the contract. And in proposition No. 4, appellant refers to error in failure to find a "default" or breach of contract by appellee.

The trial court found that appellee had fully performed under the contract up to the time he offered to pay the balance of the purchase price. The trial court concluded that appellant breached the contract by refusing to accept the offered balance. It further concluded that a second oral contract was entered into between the parties under the terms of which appellee was to return the truck and appellant was to refund the payments made by appellee.

Appellant argues that the "second contract" was within the proscription of the Statute of Frauds. ¹ We will not consider this contention since, as pointed out by appellee, the Statute of Frauds defense was not pleaded by appellant, it was not brought to the court's attention during the trial, and appellant did not object on this basis to evidence relative to the existence of the contract. The defense of the Statute of Frauds is therefore waived and barred and cannot be considered for the first time on appeal. Adams v. KVWO, Inc., Wyo., 570 P.2d 458 (1977); Davison v. Nicholson, 37 Wyo. 412, 263 P. 605 (1928); Lucksinger v. Salisbury, 72 Wyo. 164, 262 P.2d 396 (1953).

Appellant argues that there was a lack of consideration for the "second contract." Looking first at the consideration in the initial oral contract: (1) the consideration running to the appellee consisted of immediate possession of the truck, eventual...