Kirchner v. Laughlin.

• Decision Date: 06 January 1892
• Citation: 6 N.M. 300,28 P. 505
• Parties: KIRCHNERv.LAUGHLIN.
• Court: New Mexico Supreme Court

6 N.M. 300

28 P. 505

KIRCHNER

v.LAUGHLIN.

Supreme Court of the Territory of New Mexico.

Jan. 6, 1892.

Appeal from district court, Santa Fe county; A. J. WHITEMAN, Judge.

Action by August Kirchner against Saron N. Laughlin for breach of an alleged contract. Judgment for plaintiff. Defendant appeals. Reversed. For prior reports, see 23 Pac. Rep. 175, and 17 Pac. Rep. 132.

The other facts fully appear in the following statement by O'BRIEN, C. J.:

On the 9th day of August, 1879, the plaintiff, August Kirchner, a resident of Santa Fe county, in this territory claims to have entered into a written contract with the defendant, Saron N. Laughlin, a resident of California, and one Joseph H. Wiley, of the tenor following, to-wit: “These presents witness that, whereas, August Kirchner agrees to intrust and deliver to Joseph H. Wiley, of Santa Fe County, New Mexico, and Saron N. Laughlin, of California, two thousand ewes, upon the terms hereinafter stated, the said Joseph H. Wiley and Saron N. Laughlin agree and undertake to receive and hold and take care of the said ewes and to pay and deliver to the said August Kirchner annually, for the use of the same, twenty-five good yearling wethers, to be delivered at such point in said county of Santa Fe as the said Kirchner shall designate, wethers to be one year old, and twenty-five fleeces of good, clean wool to be delivered at such point on the railroad within the territory of New Mexico as said Kirchner shall designate, for each one hundred of said ewes; that is to say, five hundred wethers and five hundred fleeces of wool annually for the two thousand ewes. The said ewes to be from one to four years old, and to be delivered and received during the month of August, 1879, and this contract to continue and be in force for the term of five years from the date thereof, and at the end of said term of five years the said Joseph H. Wiley and Saron N. Laughlin are to and hereby undertake to deliver to said August Kirchner two thousand ewes of like ages, quality, and condition as those which shall be delivered to them: provided, that they may deduct therefrom any number of ewes which may be lost by inevitable accident or act of God. It is further agreed that said ewes shall be regarded as the property of said August Kirchner, and that if the said Wiley or the said Laughlin shall at any time attempt to remove the same from the territory, or to dispose of the same, without the consent of the said August Kirchner, the said August Kirchner may take possession of the same as his property, by replevin or otherwise, either the same ewes or others which may be substituted for them; the true intent and meaning hereof being that the said Wiley and Laughlin are at all times to keep and hold and have on hand two thousand ewes, to be held and regarded as the property of said August Kirchner. It is further agreed that said Joseph H. Wiley and Saron N. Laughlin shall pay all taxes which may be assessed upon said sheep, or to which the same may be liable, and shall answer for all trespasses committed and damages caused by them. In testimony whereof, etc. JOSEPH H. WILEY. [Seal] SARAN N. LAUGHLIN. [Seal] Witness: M. A. BREEDEN. By JOSEPH H. WILEY, his Agent. It is hereby acknowledged that the sheep mentioned in the foregoing agreement were received by the undersigned as therein provided, and at the same time five hundred ewes additional, of like quality, character, and description, and upon the same terms and conditions as above specified, and also twenty-three good, sound, serviceable rams, which number of rams are to be delivered with the sheep on the execution of said contract. SARON N. LAUGHLIN. By J. H. WILEY. J. H. WILEY, Santa Fe, Sept. 14, 1881.” The relations existing between Laughlin and Wiley at the time the foregoing contract was made are disclosed by the following written instrument: “This agreement, made this sixth day of December, A. D. 1875, between S. N. Laughlin, of Castroville, Monterey Co., and state of California, party of the first part, and J. H. Wiley, of Natividad, Monterey Co., and state of California, party of the second part, witnesseth, that the party of the first part agrees to lease to the party of the second part the surveyed portion of the Eaton Grant, situated in Santa Fe county, and territory of New Mexico, for a period of one year from January 1st, 1876, or to Jan. 1st 1877, and to allow said second party thirty dollars($30.00) per month for said one year; also, one-tenth increase of stock raised upon said grant, providing said first party sees fit to place any stock upon it; also, one-half of net proceeds of hay, from said grant, and two-thirds of all grain, vegetables, or whatever else may be raised upon said grant by said second party individually, and one-tenth of one-third whatever may be raised on shares by others. Also, to furnish said second party with one thousand dollars in money as he may require it for the purchase of horses or mules and farming implements. Said advance to draw one and one-half per cent. interest per month. Also, to furnish whatever seed may be required for planting, and furthermore to allow said second party to work as much of the irrigable land of said grant, for a second year, as he may choose, on same conditions as heretofore expressed, except that he shall not receive a salary from said first party. The party of the second part, for the consideration above mentioned, agrees to superintend the aforesaid grant, to take good care of the orchard and house and live-stock placed upon said grant by said first party, and to use his exertions in endeavoring to promote the interests and welfare of said first party. He agrees to cultivate land himself, to let land on shares, and to take good care of the stock and implements purchased by himself, and not to remove or dispose of any of same until all advances made by said first party shall have been fully satisfied. He further agrees to cut and market the hay, and, after deducting the necessary expenses for so doing, to turn over to said first party, or his order, one-half of the net proceeds, and to market at Santa Fe said first party's interest in all else raised upon said grant, being one-third of what is raised by said second party, and three-tenths of what is raised by others, and to turn over the proceeds to said first party or his order. Said second party also agrees to retain said Eaton Grant on same conditions as heretofore expressed in this agreement, for a period of three years, if said first party so elect. In witness whereof, etc. S. N. LAUGHLIN. [Seal.] J. H. WILEY. [Seal.]” Wiley was in possession of the grant under the foregoing “lease” at the time of the execution of the alleged contract between Kirchner, Laughlin, and himself. The plaintiff, in his declaration, states that on the 9th day of August, 1883, the alleged contract was, by the mutual consent of the parties thereto, terminated, and in full satisfaction and discharge of all obligations assumed thereby the defendant agreed to deliver to the plaintiff 2,500 ewes and 28 rams, 625 wethers, and 625 fleeces of wool; that defendant, in violation of such verbal agreement, failed and refused to deliver any more than 1,200 ewes and 12 rams,-to plaintiff's damage $3,000. The defendant pleaded the general issue to the declaration, and pleaded specially “that the said suppose agreement in writing is not his deed, and he denies his signature thereto; that he never executed the said instrument, nor authorized any person to execute it for him.” Upon the issues so made the case was tried to a jury, WHITEMAN, J., presiding, resulting in a verdict in favor of plaintiff for $8,910. The defendant thereupon moved for a new trial on 15 alleged grounds of error, which motion was overruled, and judgment entered on the verdict. The cause is here for review on defendant's appeal from this judgment.

Where it is desired to contradict a witness by letters written by him, before they can be admitted in evidence, a proper foundation must be laid for their admission, by calling the witness' attention to those parts of them which are to be used for that purpose, under section 2084, Compiled Laws, 1884.

H. L. Waldo, C. H. Gildersleeve, and Geo. C. Preston, for appellant.

Catron, Thornton & Clancy and W. B. Sloan, (John H. Knaebel, of counsel,) for appellee.

O'BRIEN, C. J., (after stating the facts.)

It is not disputed that unless appellant, Laughblin, executed, authorized, or subsequently ratified the execution of the alleged written contract, there would be no consideration to sustain his alleged verbal promise as to the delivery of a certain number of sheep and a quantity of wool, claimed to be made by him in 1883, in full satisfaction of all his obligations under such contract. The defendant, in his special plea, expressly denied under oath the execution of that instrument. In the absence of proof of such execution, by competent evidence, plaintiff would not be entitled to recover. The contract does not purport to have been signed by the defendant personally. His signature thereto is the act of Wiley, as his agent. Hence, as this written agreement is the foundation of plaintiff's right of action, we must first determine whether Wiley's agency was properly established on the trial or not. No formal power of attorney had been given, and it is not pretended that the “lease” between Laughlin and Wiley, set out in the foregoing statement, authorized the latter to execute such contract in behalf of the lessor. The so-called original contract purports to have been made on August 9, 1879, and the supplement thereto on September 14, 1881. The trial took place on the 26th, 27th, and 28th days of August, 1890. Wiley at that time resided in California. His testimony on the question of his disputed agency, the letters or other written instruments presumably in his possession, or under his control, evidencing his right to attach ap...