Pilcher v. Hamm

• Decision Date: 11 May 1960
• Docket Number: No. 2914,2914
• Citation: 351 P.2d 1041
• Parties: O. W. PILCHER and Constance Groves Pilcher, Appellants (Plaintiffs below), v. Adolph S. HAMM and Evelyn M. Hamm, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1041

351 P.2d 1041

O. W. PILCHER and Constance Groves Pilcher, Appellants (Plaintiffs below), v. Adolph S. HAMM and Evelyn M. Hamm, Appellees (Defendants below).

No. 2914.

Supreme Court of Wyoming.

May 11, 1960.

Steadman & Steadman, Cody, for appellants.

Goppert & Fitzstephens, Cody, for appellees.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

O. W. and Constance Groves Pilcher brought suit against Adolph S. and Evelyn M. Hamm to quiet title to real estate and for certain moneys claimed to be due. The suit was the aftermath of three successive agreements relating to the sale of a ranch, cattle, and equipment by the Pilchers to the Hamms; the first on August 8, 1955, providing for the sale of the ranch, livestock, and chattels for $200,000; the second on January 30, 1956, extending the time for payment; and the third on December 6, 1956, purporting to settle the differences between the parties.

Prior to the time that the matter came up for hearing, the defendants had given plaintiffs a deed for the real property, and at the pretrial conference it was recited that plaintiffs were entitled to the real estate. The court entered judgment accordingly and also allowed plaintiffs as full settlement of all matters and transactions between the parties a sum substantially less than that claimed. Plaintiffs have appealed, urging that they were entitled to receive the proceeds of a $100,000 mortgage placed on the real estate by the defendants but that defendants had improperly diverted a portion thereof which had been used as payment of attorney fees, 1956 taxes, interest on the loan, rentals, and title insurance premium.

The plaintiffs under Rule 75(a), W.R.C.P., designated the pleadings and certain exhibits as requisite for the record on appeal. Later, after defendants had designated certain other exhibits and a portion of the transcript, the plaintiffs filed a further designation of the entire transcript of the testimony which defendants moved to strike, contending that Rule 75 does not contemplate nor permit any further or second designation. In response plaintiffs argue that such a holding would require all appellants as a self-protective measure to initially designate the entire record, thereby defeating the primary purpose of the rule, the simplification of an appeal.

It is appellant's duty to designate the contents of the record, and he should designate enough thereof to permit a full presentation of his points. Blake v. Trainer, 79 U.S.App.D.C. 360, 148 F.2d 10; 3 A Barron and Holtzoff, Federal Practice and Procedure, rules ed. 1958, § 1582. This subdivision of the rule allows an additional designation by other parties, including an appellee, but it is not contemplated that such right be abused by an appellee's bringing in material unrelated to the points on which the appeal is taken. A party designating additional matters to be included in the record should avoid requesting those which are inessential. In re Joshua Hendy Iron Works, D.C.Cal., 2 F.R.D. 244; 7 Moore's Federal Practice, 2 ed., § 75.04. Thus, an appellant who has covered the points which he intends to contest should ordinarily require no additional designation, and it is expected that counsel on both sides will co-operate to present all of the record essential to the determination of the points raised by the appeal and omit all matter not bearing on such points. Blake v. Trainer, supra. If notwithstanding conscientious effort of both parties to comply with the spirit of the rule a record is incomplete or inaccurate, it is within the power of the district court under the provisions of Rule 75(h), W.R.C.P., to direct a supplemental record to be certified and transmitted. Drybrough v. Ware, 6 Cir., 111 F.2d 548.

Here appellees apparently thought the questions presented by appellants could not be resolved without a consideration of portions of the testimony, and a designation thereof would reasonably require that the remainder of the testimony be made available. Accordingly, considering all the circumstances, the oversight of appellants in securing an order of the trial court to present the supplemental record should be excused and the motion to strike must be overruled.

As to the merits of the case, the parties entered into three different agreements relating to the sale of the ranch property for the sum of $200,000. The first one provided that the purchase price was to be paid $5,000 cash, $20,000 within approximately two months, and the $175,000 balance in approximately five months. The second one, executed after $25,000 had been paid, extended the first agreement and provided for the remaining payments to be made: $20,000 in cash, $100,000 from the proceeds of a Prudential Insurance Company loan, and $55,000 by a note from buyers secured by a second mortgage on the ranch. The third one, which we will later discuss in some detail, incorporated the first two agreements by reference and provided for a settlement between the parties. Plaintiffs insist that the three agreements must be interpreted together. Numerous authorities are cited on the point, but it is unnecessary to discuss them since this is conceded by the defendants. Plaintiffs further contend that the court cannot make a new contract for the parties but must interpret the one actually executed, and this too is conceded. The only issue in the case therefore is the effect of including by reference in the settlement agreement the first...