Miller Cattle Co. v. Francis

• Decision Date: 27 April 1931
• Docket Number: Civil 3001
• Citation: 298 P. 631,38 Ariz. 197
• Parties: MILLER CATTLE COMPANY, a Corporation, Appellant, v. D. M. FRANCIS, as Surviving Partner of the Firm Composed of D. M. FRANCIS and HUGH E. CAMPBELL, Formerly Doing Business Under the Firm Name and Style of CAMPBELL-FRANCIS & COMPANY, and D. W. CAMPBELL. as Administrator of the Estate of HUGH E. CAMPBELL, Now Deceased, Appellees
• Court: Arizona Supreme Court

298 P. 631

38 Ariz. 197

MILLER CATTLE COMPANY, a Corporation, Appellant, v. D. M. FRANCIS, as Surviving Partner of the Firm Composed of D. M. FRANCIS and HUGH E. CAMPBELL, Formerly Doing Business Under the Firm Name and Style of CAMPBELL-FRANCIS & COMPANY, and D. W. CAMPBELL. as Administrator of the Estate of HUGH E. CAMPBELL, Now Deceased, Appellees

Civil No. 3001

Supreme Court of Arizona

April 27, 1931

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

See former opinion, 35 Ariz. 535, 281 P. 211.

Messrs Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.

Messrs Clark & Clark, Messrs. Stockton & Perry, Mr. E. G. Frazier Mr. Thomas P. Riordan and Mr. Stanley A. Jerman, for Appellees.

OPINION

ROSS, J.

The plaintiff and defendants entered into a contract by the terms of which plaintiff sold and leased to defendants certain hay and pasturage for the latter's sheep during the winter season of 1927-1928. The controversy is over the meaning of the contract and the respective obligations of the parties thereto.

It is the contention of defendants that they agreed to pay, and did pay, to plaintiff $18,000, for which plaintiff agreed to furnish them hay and pasturage for their sheep from November 1, 1927, to March 1, 1928, at 2 1/2 cents per head per day, and from March 1st to May 1st at 2 1/2 cents per head per day for ewes without lambs, and 4 cents for ewes with lambs.

Plaintiff contends that the agreement was that it should receive, at all events, for such hay and pasturage, $18,000 for the period from November 1, 1927, to March 1, 1928, and as much more as the hay and pasturage came to figured on the basis of 2 1/2 cents per head per day for that period, and 2 1/2 cents per day per ewe without lamb, and 4 cents per day per ewe with lamb after March 1, 1928.

Defendants admit receiving under the contract $18,500.90 worth of hay and pasturage.

Plaintiff claims, in addition to the $18,000 paid it by defendants, $5,830.44 for hay and pasturage for March and April of 1928.

The case has been tried twice. At the first trial the plaintiff introduced the contract, a letter from defendants to plaintiff, dated September 2d, calling plaintiff's attention to certain obscurities in the contract, and plaintiff's answer thereto, and rested. Defendants thereupon moved the court for an instructed verdict upon the theory that the contract was not ambiguous, and such motion was granted. Upon an appeal to this court (35 Ariz. 535, 281 P. 211), we examined the contract and the contentions of both parties and concluded that "the contract is clearly one of the class which requires and permits extrinsic evidence to determine its true meaning." In other words, we held that the contract was ambiguous and uncertain, and that the parties might by proper evidence show what their true contract was. We accordingly reversed the judgment and remanded the case for a new trial. We refer to our former opinion for a statement of the facts.

In the second trial the defendants and others who were present during the conversations between S. C. Miller, president of the plaintiff, and the defendant Francis and his agents and employees, testified as to what was said, which testimony corresponded with the contentions of the defendants, as above stated. The two letters referred to as evidence in the first trial were also introduced in evidence. The jury's verdict was in favor of defendants. The appeal is from the judgment and the order overruling motion for a new trial.

In our former opinion we said the contract was ambiguous, and that such ambiguity was not removed by the evidence introduced. We also said of defendant's letter of September 2d:

". . . There is language which, unless contradicted or explained, in our opinion, shows that the interpretation placed on the vital clause of the contract by plaintiff was the correct one. Such being the case, the trial court erred in directing a verdict when it did. It should have allowed defendants to present their evidence, and submitted the issue to the jury under proper instructions on the case as it then appeared."

The plaintiff, seizing the court's expression of opinion on the probative effect of defendants' letter, at the trial made the point, and now urges it, that the court, upon the plaintiff's motion therefor, should have directed a verdict in its favor, because no contradiction or explanation of the letter appeared in defendants' testimony.

The letter referred to as sustaining plaintiff's interpretation of the contract is not the contract or any part of the contract. It would not be even proper evidence unless the contract were ambiguous. Like any other evidence introduced for the purpose of aiding in the determination of the intention of the contracting parties, when such intention is obscure and uncertain, it is subject to explanation or contradiction. The probatic value of evidence is for the triers of the facts, and that is true whether such evidence is written or oral. What was said by the court as to the weight or force of any particular piece of evidence was not necessary to the decision of the only question before it, to wit, "the meaning of the contract." If its meaning cannot be ascertained within its four corners, then it is ambiguous. Having decided that the contract was ambiguous, thereafter it was the duty of the court to rule upon the competency and admissibility of evidence, but not its weight or its tendencies, those being questions for the triers of the facts.

Whatever was said in our former opinion, if necessary to a decision of the questions before us, has become the law of the case and should be strictly adhered to in all further proceedings in the case. Pearson v. Arkansas Midland R. Co., 106 ark. 442, 153 S.W. 595; Arizona-Parral Min. Co. v. Forbes, 16 Ariz. 395, 146 P. 504. But what we said of the evidence, or any of the evidence, outside of the contract itself, was unnecessary to a decision of the question before us, that question being whether the contract was upon its face ambiguous and uncertain.

The case was remanded for a new trial generally. The mandate did not limit the issues. The purpose of the retrial was to clarify the ambiguity and uncertainty we found to exist in the contract. Upon that question each party was entitled to introduce evidence, and in case of conflicts it was for the jury to say which was right. The competency of the evidence was for the court, but its weight for the jury, to determine. The court could not say, as a matter of law, that what was said in the letter of September 2d was true and binding upon defendants. The court could only submit the letter, together with all other proper evidence, to the jury for its consideration in arriving at a verdict.

The motion for a directed verdict upon the ground asserted was properly denied.

The same question was raised by a requested instruction. What is said in the disposition of the first assignment controls as to this one.

There was introduced considerable evidence tending to sustain the construction of the contract contended for by defendants. In the negotiations carried on prior to the signing of the contract, the plaintiff was represented by its president, S. C. Miller. Representing the defendants were John B. Duerson, bookkeeper for Campbell-Francis & Company, and D. M. Francis, surviving partner. The parties were introduced to each other by Mason Bankhead, who was also present during the negotiations and heard the conversations. Duerson's testimony, as to how the $18,000 paid plaintiff was to be applied, was as follows:

"Q. During any of these conversations that you have testified to or any that you haven't testified to, if there were any...