Lucksinger v. Salisbury, 2572
| Decision Date | 27 October 1953 |
| Docket Number | No. 2572,2572 |
| Citation | 72 Wyo. 164,262 P.2d 396 |
| Parties | LUCKSINGER et al. v. SALISBURY. |
| Court | Wyoming Supreme Court |
Harold M. Johnson, Rawlins, for appellant.
Eph U. Johnson, Rawlins, for respondents.
This matter comes before us by the direct appeal of the defendant below from a judgment finding generally for the plaintiffs and awarding them $752 and costs amounting to $37.44.
In an amended petition the plaintiffs' first cause of action alleged that in the spring of 1949 it was orally agreed between the parties that plaintiffs would sell and defendant would buy for the sum of $20 per ton in the windrows, all the hay produced by plaintiffs upon a 35 acre tract of land; that plaintiffs cut and raked such hay and defendant baled 22 tons from the windrows when defendant requested plaintiff Lucksinger to stack the remainder of the hay, amounting to an alleged 111 tons, which Lucksinger did; that defendant paid plaintiffs $440 but refused to pay plaintiffs some $2,220, which plaintiffs demanded as the balance due under the contract.
In a second cause of action, plaintiffs realleged the oral agreement, the baling of the 22 tons of hay by defendant, that Lucksinger stacked the remaining 111 tons of hay at defendant's request, and, further alleged, that the defendant refused to accept the stacked hay, although requested by plaintiffs so to do; that such stacked hay had deteriorated and become worthless, all to plaintiffs' damage in the sum of $2,220.
For a third cause of action, plaintiff Lucksinger realleged the oral agreement, the defendant's baling of the 22 tons, Lucksinger's stacking of the remaining 111 tons at defendant's request, and that the value of his service for such stacking was $277.50, for which recovery Lucksinger prayed.
After the overruling of his demurrer to plaintiffs' amended petition, the defendant answered, denying generally the allegations of each of the plaintiffs' three causes of action, and affirmatively alleging (1) that the plaintiffs had warranted that the hay would be bright, well cured, green timothy clover and native hay, but that the stacked hay was spoiled and worthless and, therefore, defendant refused to accept the same; (2) that defendant had agreed to purchase plaintiffs' 1949 crop of hay raised on the 35 acre tract for the sum of $20 per ton baled in the field, but that after plaintiffs baled and delivered to defendant approximately 22 tons they refused to bale and deliver the balance of the crop; that defendant agreed to cancel the agreement, and defendant paid plaintiffs in full for hay delivered; (3) that defendant agreed with plaintiffs to buy the crop for $20 per ton baled in the field; that plaintiffs baled approximately 22 tons and delivered same to defendant; that plaintiff Lucksinger, who was in charge of harvesting and baling the hay, refused to bale any more hay and stacked the same with the consent of the defendant; that plaintiffs refused to deliver any more baled hay, and in September or October of 1949 defendant notified plaintiff Lucksinger that he, the defendant, would not accept further delivery of hay; that plaintiff Lucksinger agreed to the cancellation of the agreement; that defendant paid plaintiffs in full for the 'aforesaid' hay, and plaintiffs accepted such payment 'in full satisfaction of all sums then due for all previous transactions between the parties, including all three causes of action alleged in plaintiffs' Amended Petition filed herein.'
The plaintiffs' reply amounted to a substantial denial of the affirmative matter alleged in the defendant's answer.
After the commencement of the action the stacked hay was sold by plaintiffs for $1,368, the parties agreeing that such sale would not jeopardize the position of either of the parties to the suit.
The case being heard by the court without a jury, judgment was rendered on June 7, 1952, Notice of Appeal filed June 14, 1952, and thereafter and on July 2, 1952 the defendant filed the following Motion, which the court overruled (caption and signature omitted):
'Comes now the defendant in the above entitled action and respectfully requests the Court to amend its Judgment rendered June 7, 1952 and entered June 9, 1952 by setting forth upon which of the first two causes of action alleged in plaintiffs' Amended Petition the Court found in favor of the plaintiffs and whether the aforesaid Judgment included any amount found in favor of the plaintiff, M. B. Lucksinger, on the third cause of action alleged in Plaintiffs' Amended Petition;
'That the defendant further requests that the Court set forth what elements entered into the Judgment, that is, the number of tons of hay delivered to defendant if the Court's judgment is predicated upon the theory that the property in the hay passed to the defendant, and that if the Court's Judgment was predicated upon the theory that the property in the hay did not pass to the defendant, then how many tons of hay did the defendant refuse to accept and what was the market price thereof at the time of the refusal of the defendant to accept delivery thereof.
'Respectfully submitted this 13th day of June, 1952.'
The errors specified are that the judgment is contrary to law and to the evidence; that the evidence is not sufficient to sustain the judgment, and that the court erred in overruling the above motion, the appellant contending in his brief and argument that the judgment is not responsive to the pleadings; that there is no evidence to sustain a judgment in favor of the plaintiff Lucksinger on his third cause of action; that the verbal agreement was within the statute of frauds and unenforceable; that the measure of damages applied by the court is erroneous, and that there was variance between the first two causes of action and the proof.
After careful study of the appellant's contention that the judgment is not responsive to the pleadings we are convinced that if this point has any merit it must be with respect to the judgment only in its relation to the third cause of action.
It is true that a judgment in favor of two or more plaintiffs upon a cause of action pleaded in favor of but one would be subject to criticism as not responding to the pleading. However, where--as in this case--there are several causes permissibly joined in a single action, in accordance with the provisions of Section 3-613, Wyoming Compiled Statutes 1945, a general judgment which responds to the issues made upon the joint claims of two or more plaintiffs as set forth in one or more of the causes of action will not be reversed because the judgment does not respond to the issues made upon a cause of action wherein all parties plaintiff are not claimants. To say this does not disregard nor violate the principles relied upon by the appellant that--'The judgment must correspond with the pleadings in respect to the parties for and against whom it goes', 33 C.J. 1154, § 95; 49 C.J.S., Judgments, § 51, or that--'The judgment must conform to, and be supported by, the pleadings in the case', 33 C.J. 1139, § 87; 49 C.J.S., Judgments, § 48.
But the appellant further contends that the judgment should effectively dispose of the issues raised by the pleadings and should clearly indicate the relief for and against the parties in regard to each cause of action in which they are respectively interested or affected. In this connection, our attention is called to Swanson v. Johnson, 58 Wyo. 1, 8, 122 P.2d 423, 424, where we said:
'* * * If the defendant was dissatisfied with the judgment he could easily have requested the court to put that matter in such shape as to make it clear just what elements entered into the judgment with which he was dissatisfied and thereby, if he had any criticisms to make, he could have intelligently and clearly presented that matter for consideration here. * * *'
It is represented that because of this statement a request was made by the motion quoted above, and that the overruling of that motion should constitute reversible error.
The reading of this motion discloses that it goes much farther than a request to 'make it clear just what elements entered into the judgment.' The first cause of action is based upon the plaintiffs' alleged executed contract and the theory that the property in the hay had passed to the defendant, while the second cause of action is based upon the defendant's alleged breach of an executory contract. Thus, the causes are so inconsistent with each other that to set forth upon which of them the court based its judgment would necessarily involve a special finding of fact. The request for such a finding of fact was not made before the rendition of the judgment and, consequently, the matter was wholly within the discretion of the court. This is equally true as to the further requests contained in the second paragraph of the motion.
Additionally, in 34 C.J., § 475, p. 250, 49 C.J.S., Judgments, § 257, p. 473, it is said '* * * Where the motion is too broad, it may be denied in toto * * *', citing as authority Overbay v. Fisher, 64 Ind.App. 44, 115 N.E. 366, 367, 368, where the court stated:
'Furthermore appellants' motion to modify is dual in form. It contains a request to modify the findings and a request to modify the judgment and decree. If either of such requests should have been denied the court committed no error in overruling the motion.
The defendant's motion here seeks special findings of fact which would modify the general finding made by the court in its judgment.
Under these circumstances,...
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