Lucksinger v. Salisbury, 2572
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | HARNSBERGER; BLUME, C. J., and RINER |
| Citation | 72 Wyo. 164,264 P.2d 1007 |
| Parties | LUCKSINGER et al. v. SALISBURY. |
| Docket Number | No. 2572,2572 |
| Decision Date | 08 December 1953 |
Page 1007
v.
SALISBURY.
[72 Wyo. 186] Harold M. Johnson, Rawlins, in support of petition for rehearing, for appellant.
[72 Wyo. 167] Eph U. Johnson, Rawlins, for respondents.
[72 Wyo. 186] HARNSBERGER, Justice.
Appellant's petition for rehearing takes exception to a portion of the opinion previously rendered, which stated:
'There was a serious conflict in testimony as to the number of tons of hay produced, which controversy involved the formula or method used to compute the tonnage, and there was other conflict in testimony as to the market value. Both of these matters required a determination of fact.' [262 P.2d 403.]
It is claimed this was erroneous because----
'(a) There is no conflict in the evidence as to the number of tons of hay produced. The only evidence in that regard was that of plaintiff Temple's testimony as to the measurements of the stacks.
'(b) The only controversy in regard to the number of tons of hay was the application of the proper rule for determining the weight of the stacks which is essentially a question of law not fact.'
Perhaps counsel overlooked the defendant's testimony wherein he said in substance that when the hay was measured (by Temple) 'it was given a long tape'; that the stacker used was one for which 15 tons would be a large stack; that Temple's measurements would make stacks averaging 18 2/3 tons which was 'far in excess by two or three tons per stack' of the stacks previously made with the same stacker, and that he could not see how it was possible to 'wad eighteen and two-thirds tons into stacks with that size stacker.'
Although this disputed the Temple testimony, we properly assumed that the court accepted the testimony[72 Wyo. 187] most favorable to the plaintiff, and so stated in the original opinion. This evidence showed the measurements to be as follows:
" L. W. O.
South No. 1 26 23.5 48
North No. 2 26.5 27.5 50
Lone No. 3 27 23. 48
East No. 4 25.5 22.5 48
South No. 5 21.5 18.5 39.5
North No. 6 23.5 23.5 47.5"
However, as counsel now points out, to accept the plaintiffs' measurements does not completely dispose of the question as to how much hay was produced, for there was still to be determined whether or not the proper formula was adopted by the court
Page 1008
to compute the tonnage. The plaintiffs admitted there was no special agreement to use any particular method to calculate the...To continue reading
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