Long v. forbes

• Citation: 58 Wyo. 533,136 P.2d 242
• Decision Date: 19 April 1943
• Docket Number: 2216
• Parties: LONG v. FORBES
• Court: United States State Supreme Court of Wyoming

136 P.2d 242

58 Wyo. 533

LONG v. FORBES

No. 2216

Supreme Court of Wyoming

April 19, 1943

APPEAL from District Court, Sheridan County; V. J. TIDBALL, Judge.

Action by Charles D. Long against W. Cameron Forbes for an amount due plaintiff for services as manager of defendant's ranch. Judgment for plaintiff, and defendant appeals.

Judgment affirmed.

For the appellant, there was a brief by H. Glenn Kinsley and John G Hutton, both of Sheridan, Wyoming, and an oral argument by Mr. Kinsley.

This action involves a claim for additional salary as manager of appellant's ranch properties. The verdict and judgment of the court below was in favor of respondent and appellant has appealed therefrom. This court has held in numerous cases that, on appeal, the criterion in determining sufficiency of evidence is whether the decision below is supported by substantial evidence. Kaleb et al. v. Modern Woodmen, 51 Wyo. 116; Peterson v. Johnson, 46 Wyo. 473. In this case the plaintiff, upon whom rests the burden of proof, has merely his own statement and his testimony is impeached, and, as against this, we have the unimpeached testimony of the defendant and, of course, facts and circumstances shown by the evidence. The plaintiff did not establish his case by substantial evidence. Casey v N. P. Ry. Co. (Mont.) 198 P. 141 and cases cited therein; Morton v. Mooney, (Mont.) 33 P. 2d 263; Montgomery Ward Co. v. Arbogast, 53 Wyo. 275; Goldberg v. Miller, 54 Wyo. 485; Herbert v Lankershim, (Cal.) 71 P. 2d 220; In Re Sturges' Guardianship, 86 P. 2d 905. Where two equally reasonable conclusions can be drawn from a set of circumstances, one favoring the existence of a fact, and the other its non-existence, the party relying upon the proof of such fact has failed to meet the burden of establishing that fact by preponderance of evidence. Northwest S. U. Co. v. Ashton, 51 Wyo. 168; Citron v. Fields, (Cal.) 85 P. 2d 534; Inkret v. C. M. St. P. & P. R. Co., 86 P. 2d 12-19. Where one testifying in his own behalf is self-contradictory, the court may judge his case from the version of the testimony least favorable to him. Putnam v. Putnam, (Mont.) 282 P. 855. A meeting of minds is essential to an agreement. 17 C. J. S. 359; 6 R. C. L., 599; Hartford R. R. Co. v. Jackson, (Conn.) 63 Am. Dec. 177; N.E. Contsr. Co. v. Winston-Salem, 83 F.2d 57; Black & Yates v. Negroes-Phillipine L. Co., 50 Wyo. 361. The alleged agreement is void for uncertainty. 12 Am. Jur. Sec. 64, page 555. There was no proof of consideration. 12 Am. Jur., page 991. Morrison v. Herrick, (Ill.) 22 N.E. 537; Knoff v. Grace, (Colo.) 190 P. 526; N.W. S. U. v. Ashton, Supra; Travelers Ins. Co. v. Parker, (Md.) 47 A. 1043. The question whether the original contract was continued or abandoned and a new contract made is a question of fact and the burden of proving it by substantial evidence is upon the person taking the affirmative. Stewart Dry Gds. Co. v. Hutchinson, (Ky.) L. R. A. C. 704; Koch v. Building Ass'n., (Ill.) 27 N.E. 530. The trial court should have directed a verdict for the defendant on the first cause of action. U. P. R. Co. v. P. Mkt. Co., 28 Wyo. 461; Dow v. Bryant, 28 Wyo. 508; McClintock v. Ayres, 36 Wyo. 132; Snowball v. Maney Bros. Co., 39 Wyo. 89; Eagen v. O'Malley, 45 Wyo. 505. The court erred in excluding the impeached testimony. 28 R. C. L. 614, 621; II Wigmore, 1021. The court erred in refusing requested instructions. 38 Cyc. 1626; Sec. 89-1306 R. S.; 3 Am. Jur. 647; 14 R. C. L. 793; Lambert v. Co., (Mass.) 134 N.E. 340; Leonard v. Woodward, (Mass.) 127 A. L. R. 999; Pool v. Ry. Co., (Mich.) 25 L. R. A. 744; Evansville v. Senhenn, (Ind.) 41 L. R. A. 728. The closing argument of counsel for defendant was prejudicial to defendant in that the difference in financial circumstances of the parties was emphasized. The judgment of the court below should be reversed and a new trial ordered.

For the respondent, there was a brief and an oral argument by R. E. McNally, of Sheridan, Wyoming.

This case was tried twice. At the close of the first trial, appellant moved for a judgment notwithstanding the verdict, which verdict was in favor of the plaintiff. The court later sustained a motion for a new trial. On the second trial, the jury found in favor of the plaintiff and defendant again moved for a judgment notwithstanding the verdict, which was denied and judgment entered for plaintiff. And so the case comes before this court after having been considered from all angles by two judges and by 24 jurymen. The verdict and judgment are sustained by substantial evidence. The original agreement for the employment was on November 15, 1929 and plaintiff entered the employ of appellant as manager of the Beckton Stock Farm at an agreed salary of $ 150.00 a month. Subsequently, on or about October 15, 1932, the parties modified their original agreement under which appellant promised to pay to plaintiff a salary of $ 200.00 per month retroactive to November 15, 1929. Under this arrangement, respondent was to continue to draw $ 150.00 per month while the remaining $ 50.00 per month was to accumulate in the hands of the appellant and to the credit of the respondent until the employment was terminated. Respondent continued as manager of the ranch for almost 10 years, during all of which time he received $ 150.00 per month. The action is to compel appellant to pay the other $ 50.00 per month for the full term of 116 months or a total of $ 5,800.00. Appellant admitted that he may have mentioned to respondent at some time that he would receive additional compensation. Appellant also admits that the ranch was maintained at least in part as a family resort. Appellant is an important man in the financial world. He was once Governor of the Phillippine Islands and at another time United States Ambassador to Japan. He is not the caliber of a man who would wilfully repudiate an honest obligation. It is more probable that he had totally forgotten the agreement made to increase the compensation of respondent, who, relying thereon, had continued in his service for 10 years. Mr. Forbes is not the kind of a man who would have in his employ an inefficient ranch manager. The fact that respondent was retained for such a long period is the best evidence of his qualifications, honesty, and integrity. All of these things and many more were obvious to the judge and to the jury. The evidence shows that respondent's predecessor had been paid $ 200.00 per month for a time and that he was discharged for inefficiency. All of the legal questions in this case are elementary and fundamental. In the first trial, counsel for appellant contended that the contract was void under the statute of frauds because it was not to be performed within one year and there was no note or memorandum thereof, but, after considering the case of Stewart v. McKeon, (Wyo.) 252 P. 1024, the point was abandoned. We find no reference in their brief to the question of the personal liability of a trustee for contracts made in behalf of his trust and the propriety of suing a trustee in his individual capacity for contracts made by him in behalf of his trust. If this point should arise in consideration of this case, we direct the court's attention to the following cases: 26 R. C. L. 1316; 65 C. J. 703; Ranzau v. Davis, (Ore.) 165 P. 1180; 31 A. L. R. 847; Taylor v. Mayo, 110 U.S. 330; Riedell v. Stuart, (Okla.) 2 P. 2d 929. We submit this matter to this court with all confidence that the verdict of two juries and the action of two trial judges may be sustained and that thereby justice will be done.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The appeal was taken by defendant, W. Cameron Forbes, from a judgment on a verdict in favor of plaintiff, Charles D. Long, for the amount found to be due plaintiff for services as manager of a ranch.

Defendant and members of his family were owners of about 5000 acres of land, known as the Beckton Ranch, in Sheridan County, Wyoming. The ranch was maintained partly as a farming and stock-raising enterprise and partly as a recreational resort for the Forbes family and their friends. Defendant had charge of the property as "Managing Trustee" for the owners, but his "opportunities for directing the affairs of the ranch were very scant." He lived in Massachusetts, and visited the ranch twice a year "when he could." It was the custom to employ a local man as manager.

Plaintiff served in that capacity from November, 1929, to October, 1932, under an oral contract of employment for an indefinite time with salary fixed at $ 150 a month. He alleged that in October, 1932, defendant promised to pay him $ 50 a month additional, effective as of November, 1929, when he commenced work, and payable on termination of the employment.

Thereafter he continued as manager, drawing $ 150 a month, until July, 1939, when the employment was terminated by his discharge. He then brought the action for the additional $ 50 a month promised in October, 1932. Defendant denied that he made the promise, and contended that the original agreement to pay $ 150 a month continued, without modification, throughout the whole time of employment.

There have been two jury trials each resulting in a verdict for plaintiff for the additional salary as claimed. A new trial was granted by the judge who presided at the first trial. Before the second trial, plaintiff filed an amended petition stating two causes of action. The cause of action of the original petition, based on the contract of October, 1932 was retained as the first cause of action in the amended petition, and there was added a second cause of action on an implied contract to pay plaintiff the reasonable value of services which he alleged he had performed for defend...