Justice v. Brock

• Citation: 21 Wyo. 281,131 P. 38
• Decision Date: 02 August 1913
• Docket Number: 721
• Parties: JUSTICE ET AL. v. BROCK
• Court: United States State Supreme Court of Wyoming

131 P. 38

21 Wyo. 281

JUSTICE ET AL. v. BROCK

No. 721

Supreme Court of Wyoming

August 2, 1913

21 Wyo. 281 at 298.

Original Opinion of April 7, 1913, Reported at: 21 Wyo. 281.

Rehearing denied.

Metz &amp Sackett, for defendant in error.

On petition for rehearing it was contended that the delay in sales was some evidence of negligence which might well have been submitted to the jury, and that since the case must be tried again the attention of the court was called to certain language of the opinion to the effect that there was no evidence of negligence which would seem to foreclose the defendant from presenting his case according to the view well sustained by the authorities that a long delay upon a falling market tends to show lack of diligence and care on the part of the factor, and is sufficient when unexplained to sustain a verdict in favor of the consignor.

OPINION

ON PETITION FOR REHEARING.

Per Curiam.

The defendant in error has filed a petition for rehearing, but takes exception only to certain language in the former opinion used in discussing the sufficiency of the evidence and does not question the correctness of the conclusions reached upon the other points discussed in the opinion. Exception is taken particularly to the following language of the opinion: "The plaintiffs here were bound under their contract to exercise ordinary care, skill and diligence to obtain the fair market value of the wool. We look in vain to find any evidence in this record showing, or tending to show negligence in that respect on the part of the plaintiffs. * * * The undisputed evidence, notwithstanding the market quotations furnished, shows that they used due diligence and were unable to find a purchaser who would pay the market quotations for the wool, or sufficient to reimburse them for their advances and charges." In the brief supporting the petition for rehearing it is conceded that the judgment must be reversed upon other grounds stated in the opinion and not now contested, but it is contended that there was evidence in the case tending to show that the plaintiffs below held the consigned wool for several months during a falling market, and that such evidence was not only competent, but was proper to go to the jury, and sufficient prima facie to show negligence or lack of diligence on the part of the plaintiffs. And it is said that the language above quoted from the former opinion ignores such...