Laughlin v. King
| Decision Date | 19 July 1913 |
| Docket Number | 740 |
| Citation | 22 Wyo. 8,133 P. 1073 |
| Parties | LAUGHLIN v. KING |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Albany County; HON. CHARLES E CARPENTER, Judge.
The material facts are stated in the opinion.
Affirmed and order vacated.
Gibson & Sullivan, for plaintiff in error.
The writing relied upon as an offer by the defendant is too ambiguous, indefinite and uncertain to constitute an offer which upon acceptance could become a binding contract without further negotiations settling and defining the terms thereof. It was nothing more than a step preliminary to negotiations. The place or places where the mares should be bred, the time or times "during the coming season," the meaning of the word "breed," or under what conditions and to what extent the mares should be served before they should be considered bred, and the defendant liable, are matters all left unsettled and uncertain. The offer does not show an intention to become bound by the mere purchase of the horse by the plaintiff and the mere knowledge of that fact by the defendant, but contemplates the making of further arrangements between the parties after notice to defendant of the purchase of the horse and of plaintiff's willingness, ability and readiness to enter into the contract along the lines suggested. (Clark on Contracts, pp. 61-64; 9 Cyc. 248; Burns v. Mills, 9 S.E. 689; Hubbard City &c. Co. v. Nichols, 89 S.W. 795; Shepard v Carpenter, 55 N.W. 906.) It is not alleged in the petition that plaintiff was ready and willing to perform the supposed agreement, and for that reason alone the demurrer should have been sustained. The petition does not allege the performance by the plaintiff of any condition save that he accepted the offer and purchased the stallion. It does not allege that defendant had knowledge of the purchase before he had made other arrangements to breed his mares, or that anything toward the acceptance of the offer was done other than to purchase the horse. (9 Cyc. 721, 722; Bliss on Code Pl., Secs. 301, 302.)
The verdict is not sustained by sufficient evidence. A verdict should have been directed for the defendant, since the pleadings did not allege, and there was no attempt to prove, the performance of the necessary conditions to render the defendant liable. (9 Cyc. 760, 761.) We think it appears from the evidence that the plaintiff accepted as the other party to the so-called contract the Toltec Live Stock Company, and not the defendant. The plaintiff admitted the defendant to be the manager for said company, but states that he did not charge the company for the services sued for. Yet in a letter written by him introduced in evidence he seems to have referred to said company as his debtor for the services aforesaid. The verdict is indefinite and uncertain and insufficient to support a judgment. The instructions to the effect that if plaintiff purchased the horse referred to in the offer it would constitute an acceptance were erroneous. The instruction that the jury might find for the plaintiff if they found that he had performed his contract and held himself ready to breed the mares was erroneous since the petition did not allege a willingness and readiness on the part of the plaintiff to perform his part of the contract. (Indiana R. Co. v. Maurer (Ind.), 66 N.E. 156; Latourette v. Meldrum (Ore.), 90 P. 503; Coos Bay Co. v. Siglin (Ore.), 38 P. 192; Moody v. Rowland, 99 S.W. 1112; Murchison v. Mansur-Tibbetts Co. (Tex.), 37 S.W. 605.) Instruction No. 7 invaded the province of the jury in that it gives undue prominence to and comments on the weight to be given to a certain fact. It does not state a correct proposition of law and its apparent object was to limit the jury in a consideration of the evidence. (38 Cyc. 1640-1650; Marshall v. Rugg, 6 Wyo. 270.) The instruction requested by defendant and based upon the theory that the offer was too indefinite and uncertain to constitute a contract upon its mere acceptance should have been given.
C. P. Arnold, for defendant in error.
It is impossible to see how any error can be reasonably asserted since the verdict was for less than the actual service proven upon the trial. The demurrer was properly overruled. The offer was sufficient when accepted to constitute a contract. It was accepted and in part performed. The petition alleges performance, and, therefore, cannot be held insufficient for failure to allege an offer to perform. All the objections are so frivolous that defendant in error should be awarded a reasonable attorney's fee under the provisions of Section 5110, Comp. Stat. 1910.
This action was brought in the District Court of Albany County by the defendant in error, Herbert King, against the plaintiff in error, L. L. Laughlin, to recover on an alleged contract for the breeding of certain mares to a stallion owned by King. There was a verdict and judgment for plaintiff below, and Laughlin brings error.
The plaintiff alleged in his petition, substantially, that about August 16, 1905, the defendant agreed with plaintiff that if plaintiff would purchase a certain stallion, then for sale, known as "Tarquin," the defendant would breed to said stallion forty mares and would pay for such services the sum of twenty dollars for each mare. That about said date to induce plaintiff to purchase said stallion the defendant made the following offer in writing, to-wit:
That plaintiff accepted said offer and purchased the stallion, all of which the defendant well knew. That during the year 1905, after the purchase of said stallion by plaintiff, the defendant bred fifteen mares to said stallion, and no more, and refused to pay twenty dollars per head or any other sum therefor, and that he failed to furnish to be bred any other mares except the fifteen head, to plaintiff's damage in the sum of eight hundred dollars, for which with interest plaintiff prayed judgment against defendant.
The defendant demurred to the petition on the ground that the facts stated therein were insufficient to constitute a cause of action. The demurrer was overruled, and the defendant answered, first, denying specifically the allegations of the petition; and, second, alleged that when the written instrument was made he was the agent and manager of the Toltec Live Stock Company; that it was a general, uniform and established custom and usage on the part of defendant to use his own name in acting for the company, of which custom and usage plaintiff had full knowledge; that said instrument was made by defendant on behalf of said company and was preliminary to negotiations for the service of said stallion provided plaintiff should purchase it. That plaintiff failed to notify defendant of the purchase of said stallion until about July 15, 1906, after arrangements had been made for the season. Alleged that the fifteen mares were turned over to plaintiff to be bred for said company under an agreement made about July 15, 1906, and that plaintiff knew that the company was the principal party to said contract and accepted said mares with that understanding and elected to hold it for his charges. A motion to strike out parts of the second count of the answer was denied; a demurrer to said second count was overruled, and plaintiff replied denying the allegations contained in said count except that plaintiff bred fifteen mares, as stated in his petition.
The overruling of the demurrer to the petition is assigned as error, and it is argued that the writing was too ambiguous, indefinite and uncertain to constitute an offer capable of becoming a contract by its acceptance. That the place of performance is not stated, and that the term "during the coming season" and the word "breed" are indefinite. We think the petition stated a cause of action at least for the breeding of the fifteen mares which it is alleged were bred. The offer was to breed forty mares to the horse if he was purchased by plaintiff, and it is alleged that the offer was accepted and fifteen mares were furnished by defendant and bred to said stallion. The agreement to that extent having been performed, it was not material that the place of performance was not stated in the offer. Nor do we think the terms "coming season" or "breed," in the connection in which they were used, were so ambiguous or uncertain as to render the petition vulnerable to a general demurrer.
It is further contended that the petition contained no allegation that the plaintiff was ready and willing to perform the agreement on his part. That might apply to that part of the petition claiming damages for the failure of defendant to furnish the other twenty-five head of mares; but the petition was in one count including two causes of action, one for breeding fifteen mares under the contract and the other for damages for the failure to furnish the others, and no motion was made to require the causes of action to be separately stated, and the demurrer was general and was, therefore, properly overruled.
It is next urged that the verdict and judgment are not sustained by sufficient evidence. The verdict and judgment were for two hundred dollars and interest, and we think the evidence was ample to sustain a finding that defendant was liable and that at least ten of the fifteen mares were bred in pursuance of the contract, and the jury evidently so found. The offer of defendant did not purport to be...
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