Ruud v. American Packing & Provision Co.

• Decision Date: 25 October 1949
• Docket Number: No. 12135.,12135.
• Citation: Ruud v. American Packing & Provision Co., 177 F.2d 538 (9th Cir. 1949)
• Parties: RUUD v. AMERICAN PACKING & PROVISION CO.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.2d 538 (1949)

RUUD v. AMERICAN PACKING & PROVISION CO.

No. 12135.

United States Court of Appeals Ninth Circuit.

October 25, 1949.

Albaugh, Bloem, Hillman & Barnard, Idaho Falls, Idaho, for appellant.

Neil R. Olmstead, Ogden, Utah, O. R. Baum and Ben Peterson, Pocatello, Idaho, for appellee.

Before GARDNER, Chief Judge, Eighth Circuit, sitting by special designation, and BONE and POPE, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellee to recover damages for the breach of a written contract for the sale of 300 steers. The parties will be referred to as they were designated in the trial court. Plaintiff is and for many years has been engaged in carrying on a general livestock, slaughtering and meat packing business at Ogden, Utah. Defendant at and prior to the times mentioned in the complaint was and for many years had been engaged in carrying on a general ranching business near Irwin, Idaho, where he was engaged in raising, feeding, buying and selling livestock for commercial purposes.

Plaintiff's complaint alleges that on or about November 4, 1946, plaintiff and defendant entered into a written contract by which defendant agreed to sell to plaintiff and plaintiff agreed to purchase 300 steers for delivery about ten months later; that delivery was duly demanded about September 3, 1947 but that defendant failed, refused and neglected to make delivery to plaintiff's damage in the sum of $31,026, for which demand had been made and payment refused. A copy of the written contract was attached to the complaint and by reference made a part thereof.

Defendant answered, in effect admitting the signing and manual delivery of the contract, but alleged that it was delivered on condition (1) that the provision therein contained providing for a 3 per cent shrinkage be eliminated and (2) that the contract should not take effect unless and until defendant procured the steers contracted for from other parties. It was then alleged that these conditions not having been complied with, the contract never became effective but was abandoned and a new agreement entered into.

The action was tried to the court without a jury and the court found all the controverted issues in favor of the plaintiff except that it found that the contract had subsequent to its execution been modified by oral agreement so as to change the number of steers contracted for from 300 head to 240 head. The findings are separately stated and go into minute detail, definitely determining every issue of fact involved. The court found as a matter of fact and concluded as a matter of law that the contract was a valid and binding obligation which defendant had breached by his failure to make delivery. It found the market value of the steers at the time delivery should have been made to be 25 cents per pound live weight, as compared to the contract price of 17½ cents per pound, and that plaintiff's damage was the difference between the market value and the contract price. It found on the evidence that the weight of the steers at the time of delivery should have been 950 pounds each; that the contract had been modified so as to reduce the number of steers defendant was obligated to deliver from 300 to 240. Based on the findings the court calculated plaintiff's damages at $17,100, for which amount, plus the sum of $3,000 which plaintiff had paid on the contract, judgment was entered.

Defendant seeks reversal on substantially the following grounds: (1) the court erred in denying defendant's offer of proof to the effect that the original contract was conditionally delivered and that the same conditions attached to the subsequent new agreement for a modification of the original contract, and in making findings of fact 3, 15 and 21; (2) the court erred in determining the weight and grade of the steers which should have been delivered and in making findings of fact 5 and 9; (3) the court erred in holding that the parties merely modified the original contract and in making findings 4, 14, 17 and 18; (4) the court erred in refusing to allow defendant to impeach the witness Louis Salerno; (5) plaintiff suffered no damages which were recoverable in this action and the court erred in making findings 8, 12, 20 and 22; (6) the court erred in holding that plaintiff had fully performed the terms of the contract on its part to be performed and in making findings 6, 13 and 16; (7) the court erred in denying defendant's motion to dismiss at the close of plaintiff's case; (8) defendant did not receive a fair trial.

In effect, defendant's points relied upon for reversal, with two exceptions, are bottomed on the claim that the court's findings are not sustained by the evidence. Manifestly, if the findings of the court are sustained by substantial competent evidence the judgment appealed from should be affirmed. These findings are presumptively correct and must be sustained unless clearly erroneous. Rule 52(a) Federal Rules Civil Procedure, 28 U.S.C.A.; Matson Navigation Co. v. Hansen, 9 Cir., 132 F.2d 487; MacDonnell v. Capital Co., 9 Cir., 130 F.2d 311; Federal Savings & Loan Ins. Corp. v. First Nat. Bank, 8 Cir., 164 F.2d 929. Defendant's argument is presented on the apparent theory that the action is triable de novo in this court but this is an appellate court and our function is to review alleged errors of law that may have been committed by the trial court. We are not at liberty to substitute our judgment for that of the trial court, and on appeal that view of the evidence must be taken which is most favorable to the prevailing party, and, if when so viewed, the findings are supported by substantial competent evidence, they should be sustained.

In passing it should be observed that defendant's contentions as to the insufficiency of the evidence are based largely upon the testimony of the defendant himself. A review of the record discloses that defendant's oral testimony was in conflict (1) with the written contract; (2) with statements contained in his letters; (3) with prior oral statements shown to have been made by him; (4) with the testimony of witnesses, some of whom had been his employees; and (5) with the surrounding facts and circumstances. In a memorandum filed by the trial court, indicating the court's views as to the facts and applicable law, the court, among other things, said, "I place no credence whatever in his (defendant's) testimony. Only in particulars in which it is fully corroborated by other evidence do I regard it as worthy of belief. Defendant reneged on his engagement for the obvious reason that it was to his advantage to do so."

It was within the province of the trial court to judge of the credibility of the witnesses and the weight to be given to their testimony, and under Rule 52(a), supra, "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Accepting, as we must, the judgment of the trial court as to the credibility of the defendant as a witness, we think there is no merit in his contention that the findings challenged by him are not sustained by substantial competent evidence. The only evidence tending to show conditional delivery of the contract was the testimony of the defendant. In our opinion the findings are clearly sustained by abundant evidence and we shall therefore pretermit further discussion of that question.

While the defendant was on the witness stand his counsel...