Schrandt v. Young

• Decision Date: 05 March 1902
• Citation: 89 N.W. 607,2 Neb. [Unof.] 546
• Parties: SCHRANDT ET AL. v. YOUNG.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 546

89 N.W. 607

SCHRANDT ET AL.

v.YOUNG.

Supreme Court of Nebraska.

March 5, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Sheridan county; Sullivan, Judge.

“Not to be officially reported.”

Action by Wilber E. Young against C. A. Schrandt and others. Judgment for plaintiff. Defendants bring error. Affirmed.Robert Lucas and A. W. Crites, for plaintiffs in error.

Stewart & Munger, for defendant in error.

DAY, C.

In the district court of Sheridan county, Wilber E. Young recovered a judgmentagainst C. A. Schrandt et al. for $450, for a breach of a contract of agistment. To review this judgment, the defendants have brought the case to this court on error. There is no dispute that the plaintiff and defendants entered into a written contract on December 16, 1895, by which the plaintiff agreed to take and keep on shares for a period of three years 771 ewes and 10 rams belonging to the defendants. As compensation for his services, the plaintiff was to receive one-half of the increase of said sheep, after first making good all the losses, and also was to receive one-half of the entire wool clip. The contract contains a great many stipulations as to the manner of feeding, handling, and breeding said sheep, which we deem unnecessary to be set out. Pursuant to the contract, the plaintiff took possession of said sheep, and commenced to carry out the conditions of the contract. The plaintiff claims that some months after taking possession of said sheep he complained to the defendants that many of the ewes were old and toothless, and totally unfit to be kept during the period of the contract for breeding, and that on October 16, 1896, an oral agreement was entered into between the parties whereby the plaintiff was to feed and prepare for market 529 of the old ewes, for which extra service, and feed furnished, the plaintiff was to receive $200; and, upon the delivery of the old ewes to the defendants, the defendants were to furnish to the plaintiff an equal number of young ewes, to be kept by him under the terms of the written contract. The evidence is clear that the plaintiff fed the 529 old ewes a large quantity of hay, corn, oats, and barley, and on November 27, 1896, at the request of the defendant, delivered said sheep to the defendants, who received them and sold them upon the market. The defendants did not pay the plaintiff the $200, or any part thereof, for the feed and care of said sheep, and did not furnish him with any young ewes in lieu of the 529 old ones, by reason of which the plaintiff claims he has been damaged in the loss of the increase of said sheep and the wool clip therefrom during the balance of the period of the contract. The defendants deny the making of the oral contract, and claim that the plaintiff, in feeding said ewes, was carrying out the terms of the written contract. They also charge mismanagement on the part of the plaintiff, and violations of his contract, by virtue of which they had the right to, and did, terminate it.

There are 116 assignments of error, arising upon the introduction of evidence and the instructions of the court. In fact, there is hardly a question to which exception was taken which is not assigned as error. We can see no useful purpose in attempting to group them and answer the objections made; suffice it to say that they do not appear to us to have been prejudicial.

The principal question involved in the case, as we view it, arises upon the objections of the defendants to the plaintiff's testimony as to the probable increase of the 529 ewes for the remaining period of the contract, and the value thereof, and the probable wool clip from these ewes, and their increase, and its value. The defendants insist that this evidence was incompetent, because the damages sought to be shown were too remote, speculative, and conjectural to form the basis of any recovery. In the leading case of Masterton v. Mayor, etc., 7 Hill, 61, 42 Am. Dec. 38, the court, after speaking of profits which were too remote, says: “But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements,--something stipulated for, the right to enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation. They are presumed to have been taken into consideration and deliberated upon before the contract was made, and formed, perhaps, the only inducement to the arrangement.” So in the case at bar the inducement...