Lucksinger v. Salisbury, 2572
| Decision Date | 08 December 1953 |
| Docket Number | No. 2572,2572 |
| Citation | 72 Wyo. 164,264 P.2d 1007 |
| Parties | LUCKSINGER et al. v. SALISBURY. |
| Court | Wyoming Supreme Court |
Harold M. Johnson, Rawlins, in support of petition for rehearing, for appellant.
Eph U. Johnson, Rawlins, for respondents.
Appellant's petition for rehearing takes exception to a portion of the opinion previously rendered, which stated:
It is claimed this was erroneous because----
'(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 most favorable to the plaintiff, and so stated in the original opinion. This evidence showed the measurements to be as follows:
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 to compute the tonnage. The plaintiffs admitted there was no special agreement to use any particular method to calculate the weight, and the hay was shown to be clean timothy and clover and was measured shortly after it had been in stack 30 days, so the governing provision of our statutes applicable in this case is as follows:
Section 39-1011, Wyoming Compiled Statutes, 945:
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Hurst v. Davis
...Holbrook v. Continental Oil Company, 73 Wyo. 321, 278 P.2d 798; Lucksinger v. Salisbury, 72 Wyo. 164, 262 P.2d 396, rehearing denied 264 P.2d 1007; Jacoby v. Town of City of Gillette, 62 Wyo. 487, 174 P.2d 505, 169 A.L.R. 502, rehearing denied 177 P.2d 204; Hinton v. Saul, 37 Wyo. 78, 259 P......
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...thing necessary to be found to sustain the order. He cites, for instance, the case of Lucksinger v. Salisbury, 72 Wyo. 164, 262 P.2d 396, 264 P.2d 1007 and also mentions the rule that where no special findings are made the presumptions are in favor and support of the trial court's judgment.......
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...court may not substitute its conclusions for the findings made by the lower court. Lucksinger v. Salisbury, 72 Wyo. 164, 262 P.2d 396, 264 P.2d 1007. In the light of these rules we look to the evidence upon which plaintiffs rely to prove the misrepresentations and concealment which they all......
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...177 P.2d 204, 169 A.L.R. 502; Hawkey v. Williams, 73 Wyo. 463, 281 P.2d 447; Lucksinger v. Salisbury, 72 Wyo. 164, 182, 262 P.2d 396, 264 P.2d 1007, where Justice Harnsberger cites many Charles L. Peters when asked under cross-examination whether he did not feel that he should tell persons ......