Producers Livestock Marketing Ass'n v. Parker, 4151

• Decision Date: 26 April 1973
• Docket Number: No. 4151,4151
• Parties: PRODUCERS LIVESTOCK MARKETING ASSOCIATION, a Utah corporation, Appellant (Plaintiff below), v. Thomas L. PARKER, d/b/a Parker Land and Cattle Company, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 345

509 P.2d 345

PRODUCERS LIVESTOCK MARKETING ASSOCIATION, a Utah corporation, Appellant (Plaintiff below), v. Thomas L. PARKER, d/b/a Parker Land and Cattle Company, Appellee (Defendant below).

No. 4151.

Supreme Court of Wyoming.

April 26, 1973.

W. A. Smith and Thomas T. Zollinger, Lander, for appellant.

Hettinger & Leedy and James L. Hettinger, Riverton, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE and McINTYRE, JJ.

Mr. Chief Justice PARKER delivered the opinion of the court.

Plaintiff, alleging a contract in June of 1969 by which it was to purchase certain calves from defendant, its down payment of $7,000 thereon, and defendant's subsequent, unjustified breach of the agreement, sought return of the down payments, together with punitive damages. In an amended complaint plaintiff also alleged as a second county mutual mistake relating to the meaning of what constituted a 'horn' and asked that the purported contract of sale be of no force and effect and that the parties be placed in status quo. Defendant admitted the execution of the agreement, denied all other allegations of the complaint, as well as averring that plaintiff's second count failed to state a claim upon which relief could be granted, and counterclaimed for his damages in excess of the $7,000 down payment. The court, sitting without a jury, issued a judgment allowing defendant $5,976.20 as damages to be retained out of the $7,000 down payment, the remainder to be returned to plaintiff. ¹ Appeal was taken therefrom, plaintiff urging its right to inspect and identify the cattle before acceptance, a denial of that right to be a breach of the contract, the evidence introduced to have been insufficient to show the calves merchantable, and the trial court's error in holding there was no mutual mistake of fact and that it was plaintiff's acts which amounted to a repudiation of the contract.

Consideration of these five charged errors indicates that it is neither necessary nor desirable to discuss each of them in detail but rather that the controversy be viewed overall, a perspective which discloses two basic facts to be resolved, (1) Was the plaintiff's conduct, as the trial court found, such as to be a repudiation of the contract; and (2) If so, what was the proper formula for the assessment of damages against plaintiff because of its repudiation? ²

The primary undisputed facts are that plaintiff and defendant entered into a written agreement, on a printed form furnished by plaintiff, for the purchase of not more than 350 nor less than 325 steer calves weighing approximately 390 pounds at the price of $38 per hundredweight and a like number of heifer calves weighing approximately 370 pounds at $34 per hundredweight, the printed contract providing inter alia:

'* * * All sorting to be done by Buyer.

* * *

* * *

'The livestock covered by this contract * * * does not include any culled, sway backed, crippled, lump jaw, sick, blind, horned, stags, bulls, calvy heifers, or loco animals as determined by Buyer * * *.' ³

Plaintiff made a $7,000 down payment on the sales agreement to the defendant. On October 24, 1969, the mutually agreed date for delivery, plaintiff's employee, Jerry W. Goodwin, went to defendant's premises where the calves were to be loaded on trucks and taken to Riverton to be weighed. A dispute there arose, because of which the calves were not delivered to plaintiff but were transported by defendant to a livestock auction in Torrington where they were sold for amounts less than that provided in the sales agreement.

In the trial of the cause, there was a serious conflict as to what occurred at the ranch on October 24 and further details of the testimony as to occurrences at that time will hereafter be noted. In its argument on appeal plaintiff contends the evidence showed that its representatives were denied the right to sort or inspect the calves under the provisions of the agreement and under § 34-2-513, W.S.1957, 1971 Cum.Supp.; defendant responds that plaintiff's representative, Goodwin, chose not to reasonably exercise plaintiff's right to inspect and identify the calves to the contract but wanted to top the herd, saying, 'I can take approximately 100 head,' thereby repudiating the agreement.

Plaintiff, advancing numerous reasons, urges its right to have inspected the calves. Defendant concedes the validity of that position and acknowledges that under the contract, if not otherwise, the buyer had a right to sort the animals, but says that plaintiff rejected 'goods' which conformed to the contract.

We examine the record then to ascertain whether or not there was substantial evidence to support the court's finding, 'plaintiff's acts * * * amounted to repudiation of the contract, justifying defendant's invoking of W.S. § 34-2-703,' and 'that defendant (thereafter) sold substantially conforming goods in Torrington.' In so doing, we of course bear in mind that an appellate court must assume the truth of the evidence in favor of the successful party, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successfuly party every favorable inference which may be reasonably and fairly drawn from it. Jacoby v. Town of City of Gillette, 62 Wyo. 487, 174 P.2d 505, 506, 169 A.L.R. 502; 62 Wyo. 514, 177 P.2d 204. Unfortunately, he testimony does not disclose a fully definitive situation in which there was clear permission of the seller for inspection by the buyer, followed by a rejection. Instead, there were various peripheral statements by both parties, the meaning thereof depending upon interpretation. We consider the following excerpts from the testimony to be significant.

Goodwin said that while defendant's men were sorting the calves and cows he talked to defendant about the horns, and received the response, "What horns," Parker calling them scurs. Thereafter Coodwin said he went into the corral and began to work the calves, 'taking the horned cattle and four hundred and fifty pound calves off,' and after working approximately twenty-five or thirty head, Story, defendant's representative, came into the alley and told Goodwin he wasn't going to work his cattle in that manner, that there was no law or judge in the country that would say the cattle had horns. Goodwin testified he then suggested to Story that he read the contract and Story insisted Goodwin was not going to sort the cattle that way, that he would sell them elsewhere and go to court to see if the cattle did or didn't have horns. After some altercation, Goodwin said he called his superiors in Salt Lake and returned, telling Story his manager had informed him not to take the cattle unless defendant would make them conform to the contract.

Story's version of the matter was at some variance. He testified that some three weeks before then date set for delivery Goodwin had told him, "* * * I don't have the cattle sold. I am in trouble with them, I can't move them because the price * * * (is) off." He said that on October 24 before the cows had been separated from the calves Goodwin made the comment that the cattle were big and that he didn't want them, to which Story responded that as soon as they got them in and sorted off they wouldn't look as big. After they had...