Nastrom v. Sederlin

Citation43 Wyo. 330,3 P.2d 82
Decision Date21 September 1931
Docket Number1693
PartiesNASTROM v. SEDERLIN
CourtUnited States State Supreme Court of Wyoming

APPEAL from the District Court, Carbon County; VOLNEY J. TIDBALL Judge.

Action by Nels Nastrom against Louis Sederlin for recovery of compensation for services performed under agreement for the operation of a sheep ranch. From the judgment for plaintiff defendant appeals.

Affirmed.

For the appellant there was a brief and oral argument by D. R Higley, of Rawlins, Wyoming.

As appears from the petition the contract is within the statute of frauds and void. Massion v. Mt. Sinai, 40 Wyo. 303. The counterclaim of defendant although obviously arising out of the transaction, differs in its legal effect from the contract offered by plaintiff and is not inconsistent with defendant's general denial. Citizen's Bank v. Levi Closson, 29 O. S. 78; Construction Co. v. Lumber Co., 25 Wyo. 168. The rule of liberal construction applies. David v. Whitehead, et al., 13 Wyo. 206; Williams-Hayward Shoe Co. v. Brooks, 9 Wyo. 433. An implied admission in one defense is not available against other defenses. Rwy. Co. v. Warren, 9 Wyo. 138, 49 C. J. 283; Construction Co. v. Lumber Co., supra; Davis v. Bank, (Wash.) 52 P. 527; Fenlon v. Chicago etc., 169 P. 862. Defendant's answer was not a memorandum sufficient to satisfy the statute of frauds. 27 C. J. 264; Mead v. Sheep Co., 32 Wyo. 324; Cornett v. Clere, (Ky.) 236 S.W. 1036; Bovo v. Abrahamson, (Cal.) 280 P. 195; Corso v. Crawford, (Ky.) 14 S.W. (2nd) 1093. Defendant was not under the necessity of pleading the statute as a defense. Williams-Hayward Shoe Co. v. Brooks, 9 Wyo. 430; Davison v. Nicholson, 37 Wyo. 315. The court erred in receiving parol evidence to establish plaintiff's contract and in denying defendant's motion to strike. The judgment is contrary to the evidence and contrary to law. A denial should not be designated as a defense which term is confined to affirmative statements of new matter. 31 Cyc. 193, 49 C. J. 283, 5659 C. S.

For the respondent there was a brief and oral argument by A. J. Rosier, of Rawlins, Wyoming.

The statute of frauds applies only to executory contracts and not to agreements completely executed. 27 C. J. 321, 323, 379. Diamond v. Jacquith, 125 P. 714; Gregory v. Peabody, 270 P. 826, 89 N.W. 100 (Ia.), 152 N.W. 571 (Ia.), 18 N.W. 204 (Mich.), 141 N.W. 563 (Mich.), 152 P. 681, 31 N.W. 938, 25 N.E. 432, 27 C. J. 312, 25 R. C. L. 718. Plaintiff's petition is based upon cost and services rendered by him under the contract, the benefit defendant retained. A contract is admissible under the authorities as evidence of the circumstances of the transaction. If defendant admits the contract, the statute of frauds is not available unless specially pleaded. Williams-Hayward Shoe Co. v. Brooks, 9 Wyo. 431; Gregg v. Garrett, 31 P. 721; Abba v. Smyth, 59 P. 756; Mitchell v. Henderson, 97 P. 942, 110 S.E. 816.

D. R. Higley, in reply.

Had the petition blended a cause of action on express contract with a cause for quantum meruit, there might be some merit in his contentions. In an action on express contract plaintiff cannot recover on proof of an implied contract. 13 C. J. 746. The allegations of the petition are insufficient under the rule announced in Metcalf v. Gilbert, 19 Wyo. 338. The complaint on quantum meruit must allege the doing of the work at the request of the defendant. 2 Bancroft's Pleadings 1632; Lufkin v. Harvey, (Minn.) 147 N.W. 444. The doctrine of part performance appears to be one invoking equitable relief. Canada v. Ihmsen, 33 Wyo. 450. But insufficient to defeat the statute of frauds. Mecum v. Metz, 30 Wyo. 504, 32 Wyo. 86; Massion v. Mt. Sinai, 40 Wyo. 309. Plaintiff having declared upon express contract, and tried his case, on that theory, cannot now support his claim of quantum meruit; no sufficient performance is pleaded or shown to defeat the statute of frauds.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

In an action instituted by Nels Nastrom in the District Court of Carbon County against Louis Sederlin, the former recovered a judgment. The record in the case is here for review by direct appeal, at the instance of the losing party below, who challenges the propriety of that judgment and some of the court's rulings made in the course of the trial. The parties will be referred to herein as plaintiff and defendant respectively.

Plaintiff's petition, filed November 19, 1928, contained five alleged causes of action. As the judgment aforesaid allowed a recovery on the first cause of action only--the court finding against plaintiff on the others and no complaint being here made by him on account of such finding--we are necessarily principally concerned with that one subdivision of the pleading. It may, however, become necessary in the course of this discussion also to refer briefly to plaintiff's second cause of action.

The first cause of action as alleged, in substance is to the following effect: That on or about November 1, 1926, plaintiff and defendant entered into an agreement whereby they were to jointly purchase and own 1050 head of sheep, which were to be fed and grazed upon lands owned individually by the parties--defendant having 2100 acres and plaintiff 110 acres for the purpose; that plaintiff was to herd, feed and care for the sheep on said lands, paying all expense therefor except cost of shearing, dipping, grain or oil cake needed, which cost was to be shared equally; that defendant had about 350 tons of hay in stack upon his land, which was to be fed to the sheep by plaintiff "free of cost" during the winter of 1926-1927, the plaintiff being thereafter permitted to enter upon defendant's land and at plaintiff's own expense during the term of the contract to put up all the hay thereon, which was to be fed said sheep, their increase or any additional sheep the parties might jointly acquire; that each party should pay the taxes on his own lands and personal property, and one-half the taxes on the said sheep; that plaintiff should, at his own expense, build some 7 1/2 miles of wire fencing on defendant's land during the year 1927, defendant paying only for the wire used in such construction; that defendant should allow plaintiff in putting up the hay to use machinery owned by defendant for that purpose; that the profits from the sale of all wool and lambs from said sheep should be equally divided each year between the parties during the term of the contract, which should continue until October 15, 1931; that the sheep were purchased and maintained until September 15, 1928, the plaintiff meanwhile duly performing all the terms and conditions of the contract on his part to be performed; that pursuant to the contract, during the year 1927, he built, at his own expense, upon defendant's ranch, the 7 1/2 miles of fence, which was of the reasonable value and cost of $ 700; that during the year 1928, at his own expense, also pursuant to said contract he put up on defendant's ranch about 200 tons of hay, at the reasonable cost to plaintiff of $ 500; that said fence and hay were to be used in the maintenance and operation of the said sheep jointly owned, as aforesaid; that on or about September 15, 1928, defendant refused to comply further with the terms of the contract, notified plaintiff to leave defendant's lands and declined to allow plaintiff to carry out the agreement, although plaintiff was ready and willing so to do; that defendant then divided the sheep equally between the parties and required plaintiff to then and there remove same from defendant's ranch, but unlawfully retained to his own use the fence constructed by plaintiff in 1927 and the hay put up in 1928, as aforesaid; that by reason of the termination of the contract, plaintiff has been damaged in labor and cost in building and constructing the fence in the sum of $ 700, and in putting up said hay in the sum of $ 500, which sums are now due and owing by defendant to plaintiff.

Defendant answering this cause of action denied each and every allegation therein contained; further answering and by way of counterclaim thereto defendant charged that about the month of November, 1926, plaintiff and defendant entered into an agreement which is then set out and which appears to be substantially the same as that pleaded in plaintiff's first cause of action above detailed, except that it contains no clause relative to the construction of any fence. It was then alleged that the contract thus pleaded was carried out by the parties until the fall of 1928; that during the 1928 haying season, plaintiff, pursuant to the agreement aforesaid, put up only a part of the hay crop and wrongfully refused to put up about one-third of that year's crop, or about 100 tons of hay; that due to plaintiff's neglect and refusal to put up said hay, defendant was at much expense in harvesting said 100 tons of hay, much of which was injured because of plaintiff's said neglect, all to defendant's damage in the sum of $ 500.

Plaintiff's reply contained a general denial of the averments in defendant's counterclaim.

The case was tried to the court without a jury, with the result that a judgment was entered for plaintiff allowing a recovery in the sum of $ 1,000 on his first cause of action, and, as previously indicated, directing that he take nothing by reason of the remaining causes of action pleaded by him.

On the trial, plaintiff testified that he had an agreement with the defendant during the month of November, 1926, as to running and owning certain sheep; that subsequently on or about December 6, 1926, the defendant handed a written memorandum to plaintiff with the statement that "here is our agreement." The memorandum read:

"Agreement entered into this 6th day...

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3 cases
  • Willis v. Willis, 1878
    • United States
    • United States State Supreme Court of Wyoming
    • October 1, 1935
    ...sue as on a quantum meruit. Button v. Higgins, (Colo.) 38 P. 390; Metcalf v. Gilbert, 19 Wyo. 331; Hecht v. Stanton, 6 Wyo. 84; Nastrom v. Sederlin, 43 Wyo. 330. evidence should ordinarily be taken as true, with certain exceptions supported by authorities. 23 C. J. 47; Gruett v. Dibble, (Mi......
  • Aurigemma v. New Castle Care LLC, C.A. No. 05C-04-113 MJB (Del. Super. 8/22/2006), C.A. No. 05C-04-113 MJB.
    • United States
    • Superior Court of Delaware
    • August 22, 2006
    ...v. Hinkley, 105 N.W. 230, 231-232 (Wis. 1905); A.J. Hamilton, Inc. v. Atlas Freight, Inc., 50 P.2d 522, 523 (Wis. 1935); Nastrom v. Sederlin, 3 P.2d 82, 84 (Wyo. 1931). 19. 841 N.E.d 557 (Ind. 20. Id at 567. ...
  • Sheridan Coal Company v. Harnesberger, 1668
    • United States
    • United States State Supreme Court of Wyoming
    • September 21, 1931

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