Mead v. Leo Sheep Co.

• Citation: 232 P. 511,32 Wyo. 313
• Decision Date: 20 January 1925
• Docket Number: 1145
• Parties: MEAD v. LEO SHEEP CO. [*]
• Court: Wyoming Supreme Court

232 P. 511

32 Wyo. 313

MEAD v. LEO SHEEP CO. ^[*]

No. 1145

Supreme Court of Wyoming

January 20, 1925

ERROR to District Court, Carbon County; VOLNEY J. TIDBALL, Judge.

Action by Leo Sheep Co., a corporation, against W. H. Mead. Judgment for plaintiff, and defendant brings error.

Affirmed.

N. R Greenfield for plaintiff in error.

The Court erred in denying defendant's motion for a more definite statement. Defendant was entitled to know whether the contract was oral or in writing; Schmid v Schmid, 37 Nebr. 639, 56 N.W. 207; Sinway v Kitzman, 28 S.D. 577, 134 S.W. 325; Lonbard v. Bank, 107 La. 183 31 So. 654; Rocky v. Haslett, (N. Y.) 86 N.Y.S. 320. The receipt and evidence was insufficient to satisfy the statutes of frauds, 3751-52, 27 C. J. 312; Page Conts. 2403. Oral evidence can bring together different writings, but cannot connect them to satisfy the statute, 27 C. J. 262; Pottery Co. v. Onken Bros., 26 Wyo. 287; Fowler Co. v. Catterell, 8 Nebr. 512, 57 N.W. 19; Cunha v. Callery, (R. I.) 69 A. 1001; Feichen v. Korn, 123 N.E. 355; North v. Mendel, (Ga.) 54 Am. Rep. 879; Boardman v. Spooner, 90 Am. Dec. 196; Ridgway v. Ingram, (Ind.) 19 Am. Rep. 706; Turner v. Lorillard Co., (Ga.) 28 S.E. 383; the memorandum must contain the substantial terms of the contract to satisfy the statute. The Court erred in taking the testimony of witness Vivion from the jury by its instructions; 20 Cyc. 320; 6 R. S. L. 249; the existence of a contract is a question for the jury. St. Louis Co. v. Wiggins Co., 102 Ill. 514; Holmes v. Foss, 131 Mich. 487; Greenbaum v. Stern, (Wash.) 155 P. 751; Bloom v. Stephen, (Kan.) 182 P. 545. Instruction numbered 3 was prejudicial as shown by the foregoing authorities. The Court erred in refusing instructions offered by defendant.

Brimmer & Brimmer and Corthell, McCollough & Corthell for defendant in error.

A petition alleging a contract, is sufficient without stating whether it is in writing. Browne St. of Frauds 505, except where the Code requires an allegation that it is written, 20 Cyc. 308; Andrew Stephens Pl, 228. The general rule obtains in Ohio; Headington v. Neff, 7 O. 228; Remheimer v. Carter, 31 O. S. 579; Smith v. R. R. Co., 11 N. P. N. S. 65. Our procedure is taken from Ohio, so the rule obtains here and finds almost universal concurrence among the authorities. The contention that the damage should have been confined to date of the alleged breach was not raised at the trial and is unworthy of discussion. There was a memorandum of the agreement sufficient to satisfy Sec. 3751 C. S. Rowell v. Barber, (Wis.) 125 N.W. 937; 27 C. J. 309-12. Our own Statute of Frauds has been construed by the Federal Circuit Court of Appeals. Mine & Smelter Co. v. Bank, 173 F. 859; holding a cashier's check to be a sufficient memorandum; a subsequent memorandum is sufficient, 27 C. J. 263; Handy v. Barclay, (Conn.) 119 A. 227; Galoob v. Rock, (Okla.) 211 P. 73; Barton v. Molin, (Mich.) 189 N.W. 74; Whitewell v. Wyer, 11 Mass. 6, Sheshy v. Fulton, (Nebr.) 57 N.W. 395; the point is fully covered in North Platte Co. v. Price, 4 Wyo. 293; the memoranda contained all of the essentials of a contract, except the price and mention of the pasturage. Various memoranda may be connected by parol evidence. Beckwith v. Talbot, 95 U.S. 289; No. Platte Co. v. Price, supra. Illustrations of the rule are shown in the following cases; Smith v. Colby, 136 Mass. 562; Marks v. Cowdin, 226 N.Y. 138; Thayer v. Luce, 22 O. S. 74; Benjamin on Sales, page 193; 27 C. J. 262; Brewer v. Horst Co., (Cal.) 60 P. 418. The rule requiring memoranda to contain reference to each other, applies only to unsigned memoranda. Keithley v. Craig, 135 N.E. 156. Immemorial custom and usage will be judicially noticed by the Court, 12 Cyc. 1231. In construing the contract and giving instruction complained of, the trial Court went beyond its authority, Monnet v. Monnet, 46 O. S. 30; Boswell v. Bank, 16 Wyo. 161; Genesee Bank v. Kindt, 7 Wyo. 321. Meads testimony did not conflict with the correspondence and evidence, but if it had, the writings would stand, 17 Cyc. 632; Stickney v. Hughes, 12 Wyo. 397. The trial Court was in duty bound to draw its conclusions of law from the writings constituting the agreement.

RINER, District Judge. BLUME, J., and BROWN, District Judge, concur.

OPINION

RINER, District Judge.

The Leo Sheep Company, a Wyoming Corporation, hereinafter designated as "Plaintiff" instituted this action in the District Court of Carbon County against W. H. Mead, hereinafter called the "Defendant" to recover on account of the breach of an alleged contract for the sale of hay and pasturage. The issues below were made up by a third amended petition, an answer and a reply.

The third amended petition alleges in substance the incorporation of the plaintiff, its ownership of a large amount of sheep and cattle needing hay and other feed during the winter season, and that the defendant was the owner of certain described lands in Carbon County, Wyoming, which produced large quantities of hay and pasturage; that

"on or about January 1st, 1915, the plaintiff and the defendant entered into an agreement whereby the defendant agreed to sell and the plaintiff agreed to purchase all of the hay grown and produced by said defendant upon his said lands, except the hay which he might need for his own use, and the hay which Andy Nelson & Co. might purchase, or might thereafter contract to purchase from the defendant for their own use, and also all the pasturage on said lands all during the period of five years from January 1, 1915 to January 1, 1920, all at the price of $ 6.50 per ton for the quantities of hay so purchased by the plaintiff, and all provided the said ranch lands should not be sold."

That the plaintiff duly performed all of the conditions of the agreement on its part; that the defendant carried out his part of the contract during the years 1915 and 1916, but thereafter failed in and refused performance, though the plaintiff was at all times ready to perform its part; that demand was upon several occasions made on defendant that he comply with the contract's requirements and that he declined to do so; that in each of the years 1917, 1918 and 1919 the defendant raised approximately four hundred tons of hay in excess of his own needs, and the amount required by Andy Nelson & Co.; that on account of defendant's default plaintiff was required to purchase elsewhere quantities of hay, grain, cottonseed cake and pasturage for its livestock at prices in excess of the price agreed to be paid defendant, these payments being specifically set out. Other damages are alleged on account of hire of extra help, the enforced location of the livestock upon the open range, depreciation in wool and diminution in weight of the livestock and loss from exposure and starvation. It is finally charged that while the defendant knew the consequences which would follow from a failure to furnish plaintiff's stock with the feed required by the contract, yet he wilfully declined to perform his agreement.

To this pleading defendant interposed a motion to require it to be made more definite and certain by alleging whether the agreement was oral or in writing and if in writing that it be set forth in the petition, and also to strike certain portions thereof particularly where it was alleged that the defendant knew of the consequences of failure to supply the feed yet wilfully refused to do so. This motion was denied by the trial court and a separate bill of exceptions is before us to present the ruling and exception thereto, reversible error being assigned thereon.

An answer was filed admitting plaintiff's incorporation, defendant's ownership of the described lands, and denying all other allegations contained in plaintiff's third amended petition; there was also an affirmative plea of the statute of frauds. This affirmative matter was met by denial through plaintiff's reply.

The cause was tried to a jury and a verdict returned in favor of the plaintiff in the sum of Twenty-five hundred dollars. Judgment was rendered thereon, defendant's motion for new trial being overruled, this proceeding in error instituted by the defendant brings the cause here for review. Error is assigned because of the denial of defendant's motion for a new trial.

The point first presented for consideration is the alleged error of the trial court in not sustaining defendant's motion to make the plaintiff's pleading more definite and certain and to strike certain parts thereof, as heretofore mentioned. Proceedings of this nature are addressed to the sound discretion of the trial court and we see nothing in the way the issues were finally framed in the cause or in the subsequent proceedings at the trial to indicate that this discretion was abused or that defendant was injured or prejudiced in the slightest degree by the ruling here attacked. He was able to present whatever defenses he saw fit to employ and fully and fairly had the judgment of the court upon them. Indeed, it was not urged either in the brief or the argument of the defendant that there had been an abuse of discretion on the part of the trial court in this connection. That the weight of authority supports this view as the one which should be adopted by an appellate court in reviewing such a ruling see 4 Corpus Juris 801, Secs. 2758, 2760, and extended list of cases cited; also 21 R. C. L., Secs. 144, 146 and cases cited.

At the time of the transaction involved in the case, the statute of frauds of this State provided as to agreements by their terms not to be performed within one year from their making, and as to contracts for the sale of goods and chattels, that they should be "void" unless there should be a "note or memoranda" thereof "in...