Kuhn v. McKay

• Citation: 7 Wyo. 42,49 P. 473
• Parties: KUHN v. MCKAY
• Decision Date: 07 July 1897
• Court: Wyoming Supreme Court

49 P. 473

7 Wyo. 42

KUHN v. MCKAY

Supreme Court of Wyoming

July 7, 1897

Rehearing Denied December 15, 1897, Reported at: 7 Wyo. 42 at 65.

Commenced in District Court April 28, 1894.

ERROR to the District Court for Sweetwater County. Hon. JESSE KNIGHT, Judge.

This was an action brought by George McKay against Adam Kuhn to recover a balance alleged to be due upon the sale of certain mining property. The action was originally instituted in the District Court for Fremont County, and was taken on change of venue to Sweetwater County. The case was tried to a jury, and a verdict returned for the plaintiff, his damages being assessed at $ 3,786.66. Judgment was rendered upon the verdict, and defendant prosecuted error. The material facts are stated in the opinion.

Affirmed.

Evans &amp Rogers, for plaintiff in error.

If Kuhn failed to deliver the stock as agreed, the remedy of Mr McKay would be by personal action for damages, caused by breach of the contract. (2 Schouler on Pers. Prop., 571; Newmark on Sales, 398; Benj. on Sales (6th ed.), 870; 21 Ency. L., 612.) This was not an action for damages, but was in the form of a count in indebitatus assumpsit. The evidence signally fails to sustain the averments of the petition. One state of facts was alleged, and an entirely different state of facts proven. A plaintiff can not declare on one theory and recover on another. The stock was to be delivered at Ogden, Utah, and no demand was ever made there for the stock. The contract having been made at Ogden, Utah, it was to be performed there. (Bish. on Contracts, 1391.) Kuhn was not bound to send or carry the stock elsewhere than Ogden, the place of delivery as agreed upon. (Benj. on Sales (6th ed.), 679; 2 Schouler on Pers. Prop., 384; Newmark on Sales, 228; Story on Sales, 300, 301.)

Where the vendee has paid the consideration (as McKay had) and the vendor for that consideration agrees to deliver a specific quantity of goods or stock at a future day (as Kuhn had), and fails to deliver, the damages for the failure or breach are calculated upon the value of the goods or stock; thus, upon the breach of an agreement to pay in a particular species of paper, as stock, or bank or other notes, recovery can be had only of the value of such stock or paper. (Barnes v. Brown, 130 N.Y. 372; Robinson v. Noble, 8 Peters, 181; Bank v. Bank, 16 Wallace, 483; R. R. Co. v. Benedict, 10 Gray, 212; Dwyer v. Rich, 1 Metc., 180; Banks v. Reese, 26 Pa. 143; Cummings v. Dudley, 60 Cal. 383; Fosdick v. Green, 27 Ohio St. 484; Safely v. Gilmore, 21 Iowa 588; Hixon v. Hixon, 7 Humph., 33; Porter v. B. B. R. R. Co., 32 Me. 539; Murray v. Stanton, 99 Mass. 345; Green v. Sizer, 40 Miss. 530; Kirtland v. Molton, 41 Ala. 548; Marr v. Prother, 3 Met., 196; Brooks v. Hubbard, 3 Conn. 58; 2 Sutherland on Damages, Pars. 659, 660.)

The cause of action arose in Utah, and was barred by the statutes of Utah, and so of Wyoming. (Rev. Stat. Wyo. Sec. 2379; Horton v. Horner, 16 Ohio 145; Webster v. Davis (Neb.), 62 N.W. 482; Wernse v. Hall, 101 Ill. 423; 13 Am. and Eng. Enc., 769; Wood's Limitation of Actions, 20, 21; Hyman v. Bayne, 83 Ill. 256; Bemis v. Stanley, 93 Ill. 230; Lloyd v. Perry, 32 Iowa 144; Librecht v. Wilcoxon, 40 Iowa 93; Thompson v. Read, 41 Iowa 48; Penfield v. R. R. Co., 134 U.S. 351.)

The opinion or conclusion of the plaintiff as to his claim and what he was entitled to receive, was not competent testimony; it left it to the witness to determine the rule or measure of damages. (Blair v. R. R. Co., 20 Wis. 276; Montelius v. Atherton, 6 Colo. 224; R. R. Co. v. Budlong, 10 How. Pr., 289; Lincoln v. R. R. Co., 23 Wend., 425; Clark v. Baird, 9 N.Y. 183; Joyce v. Ins. Co., 45 Me. 168.) It was error not to require the production in evidence of the written contract. The error was not cured by the subsequent admission of the writing, since the oral testimony was not stricken out.

C. C. Hamlin and Clark & Breckons, for defendant in error.

Whatever construction may be given to the two written contracts, it is clear that if they provided for the delivery of the stock at Ogden, they were subsequently modified by the parties themselves. Kuhn both verbally and in writing assured McKay that the stock would be delivered to him, and he did not say that he could get the stock by sending to Ogden for it. When demand was made Kuhn did not refuse delivery because of the place of demand, but because only that it was not issued. Demand at Ogden would have been fruitless.

While it is true that the form of the petition seems to indicate that the plaintiff relied upon an implied promise to pay the value of the stock, and not on damages for failure to deliver, it is also true that the facts established by the evidence are set forth in the petition, and by the latter the defendant was clearly notified of plaintiff's claim. Amendments even after judgment are allowable to make the pleadings correspond to the proof. The court will presume the proper amendment to have been made. There was sufficient proof of value of the stock. As to rule in absence of proof of value, see 2 Sutherland on Damages, p. 392; Thomas v. Dickenson, 12 N, Y., 364; Kershman v. Lediard, 61 Barb., 573. In the absence of any proof as to market value the par value should be recovered.

The Utah statute of limitations does not constitute a defense, because; 1, the delivery of the stock was not to be made in that State; 2, if the contract called for delivery in Utah it was subsequently modified; 3, Kuhn promised in writing to deliver the stock within less than four years; 4, he made partial payment within four years. Partial payment or written acknowledgment of a demand starts anew the statute of limitations. (Rev. Stat. Wyo. Sec. 2381.) As to unwritten as well as written laws of other States, the presumption is that the same is the law of the forum in the absence of evidence to the contrary. (Stark v. Olson, 37 Neb.; Smith v. Mason, 41 Neb.; Healey v. R. R. Co., 57 Mo. App., 675; Wikerscham v. Johnson, 104 Cal. 407; Scroggin v. McClelland, 56 N.W. 208; Bierhaus v. Co., 8 Ind App., 246; Amer. Oak Leather Co. v. Standard Gig Saddle Co., 9 Utah, 87; Hilburn v. Harris. 21 S.W. 572 (Tex.); Roehl v. Portius, 47 La. Ann., 1582, 18th Southern, 645; Cavalaro v. Co., 110 Cal. 348; 42 P. 918; Bank v. Laing, 49 N.W. 414 (S. D.); Osborne v. Blackburn, 78 Wis. 211.)

It is impossible to tell from the record upon what petition the case was tried. The petition is clearly shown to have been amended. The record does not show an amended petition. Where an amended answer has been filed, the original answer can not be resorted to to explain the allegations of the amended answer. (32 N.Y.S. 1127.) Upon the record the court is not in a position to tell what the amendments to the petition were. There is nothing, therefore, to determine. (Rinard v. Gardner, 31 P. 134; Gardenshire v. Same, 37 P. 813; Randall v. Kalbfus, 17 A. 238; County v. Miller, 40 N.E. 447; Miller v. Whitaker, 33 Ill. 386; Van Meter v. Love, 29 Ill. 448; County v. Cooper, 62 N.W. 1084; Elliotts App. Pro., 596; Company v. Rader, 38 N.E. 341.) The verdict is not in the record. It should have been. (Lasseter v. Simpson, 3 S.E. 244.) It does not appear that the motion for new trial was filed in time.

POTTER, JUSTICE. CONAWAY, C. J., and BRAMEL, Dist. J., concur.

OPINION

POTTER, JUSTICE.

In this case the defendant in error, George McKay, brought suit against Adam Kuhn, the plaintiff in error, to recover a balance of $ 2,500 and interest alleged to be due upon the purchase price of certain mining property situated in Fremont County in this State, sold by the former to the latter. By the allegations of the amended petition the indebtedness was averred to have existed on the 21st day of May, A. D, 1888, and that the plaintiff in error, who will for convenience be referred to as the defendant, then promised to pay the same in non-assessable stock of the Hub Gold Mining Company, a corporation duly organized and existing under the laws of the State of Massachusetts, and doing business in the State of Wyoming. It was further alleged that the defendant had neglected and refused to deliver said stock, but that in the year 1893 he had, as the result of a suit instituted by him in 1892 against said company for the recovery of $ 25,000, caused the entire property of said company to be sold to Edward Rosenbaum, who had become the assignee of the judgment obtained by the defendant in said suit. That thereby the stock in said company had become valueless. The prayer of the amended petition was for judgment for said amount, with interest from June 25, 1891.

The answer of the defendant denied any indebtedness as well as any neglect or refusal to deliver the stock, and alleged that defendant had at all times been, and still was, ready, able and willing to deliver the same upon the request of the plaintiff. The suit against the mining company, and the sale of its property was admitted; but that the stock had become valueless was denied. As an affirmative defense it was alleged substantially that the purchase of the property by the defendant occurred under a contract in writing made at Ogden City, Utah, on the 1st day of March, 1887, between defendant and the plaintiff and one James Kime, whereby it was agreed that the purchase price of the property was to consist of $ 6,000, to be paid to each of the vendors, Kime and McKay, at the office of A. Kuhn & Bro., in Ogden City, Utah Territory, and the delivery to each of said parties of 500 shares of the capital stock, fully paid up and non-assessable, of a mining corporation to be organized on or before July 10, 1887; and it was alleged that said defendant, since the making of said contract, had been and was able and willing to convey...