Shepard v. Top Hat Land & Cattle Co.

• Decision Date: 18 February 1977
• Docket Number: No. 4597,4597
• Citation: 560 P.2d 730
• Parties: 21 UCC Rep.Serv. 760 Robert F. SHEPARD, Appellant (Defendant below), v. TOP HAT LAND & CATTLE CO., a corporation, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 730

560 P.2d 730

21 UCC Rep.Serv. 760

Robert F. SHEPARD, Appellant (Defendant below), v. TOP HAT LAND & CATTLE CO., a corporation, Appellee (Plaintiff below).

No. 4597.

Supreme Court of Wyoming.

Feb. 18, 1977.

Fred W. Phifer, Wheatland, for appellant.

Alfred M. Pence, Pence, Millett & MacMillan, Laramie, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

On August 8, 1973, the appellant, Robert F. Shepard, entered into a written contract to purchase cattle from Top Hat Land & Cattle Co., the appellee. When the cattle were delivered at Top Hat's ranch on September 24 and 25, 1973, Shepard refused to take some 56 head. These cattle then were sold at auction, and this action was brought to recover the difference between the contract price and the amount for which the cattle sold at auction. The district court awarded a judgment to Top Hat Land & Cattle Co. in the amount of $7,151.32 (which represented the difference between the contract price and the selling price of the cattle rejected) together with interest. Shepard has appealed from this judgment.

The material portions of the contract which are involved in this dispute read as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The primary issue in this appeal is the meaning to be attached to the contractual language set forth above. Shepard contends that because the quality of the cattle was stated as 'choice,' and the contract warranted that quality, he was justified in not accepting the 56 head of cattle. He argues that the district court erred in holding that he should have accepted them and in awarding damages to Top Hat for breach of the contract. Top Hat Land & Cattle Co. Contends that the requirement of the contract that the buyer will take all cattle governs, and that for this reason Shepard was not entitled to reject any of the cattle. Furthermore, Top Hat argues that Shepard is not entitled to rely upon the warranty because he inspected the cattle, accepted them all, and after that wrote in his own hand the language in the contract, 'Buy (sic) takes all cattle, * * *.' Top Hat's position is that under the circumstances Shepard's refusal to take the 56 head of cattle constituted a breach of the contract, and the court properly entered judgment in its favor.

The record demonstrates that there is no dispute over the fact that the 56 head of cattle were not choice cattle. They were rejected by an independent expert cattle buyer who testified at the trial that they were not of choice quality. His testimony is not contradicted.

The record in this case further discloses that the district court heard, and we presume relied upon, a substantial quantum of evidence, extrinsic in its nature, which was intended to explain the contract. This Court previously has said that § 34-2-202, W.S., '* * * was intended to liberalize the parol evidence rule and to eliminate the presumption that a written contract is a total integration.' Zwierzycki v Owens, Wyo., 499 P.2d 996, 997 (1972); and Shrum v. Zeltwanger, Wyo., 559 P.2d 1384 (1977). These cases appropriately state the effect of subsection (b) of § 34-2-202, W.S. in relation to factual situations described in the statutory language. In this case, however, the parties point only to the language of the contract to sustain their respective positions. Neither of them suggests that the additional evidence constituted 'evidence of consistent additional terms' or evidence of 'course of dealing or usage of trade' or 'course of performance' within the meaning of subsections (a) or (b) of § 34-2-202, W.S. In this instance extrinsic evidence introduced to explain the intention of the parties to this contract should only have been received under the usual rules relating ambiguity. If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).

The ambiguity asserted by Top Hat in this case is claimed to arise out of a conflict between certain provisions of the contract. Specifically, it is urged that a commitment of Shepard to take 'all cattle,' is inconsistent with Shepard's reliance upon a warranty of choice quality which he used to justify his refusal to take some of the cattle. A construction of a contract leading to a conclusion that it encompasses inconsistent provisions is to be avoided if that is reasonably possible because parties to a contract do not intend to introduce contradictory clauses into their agreement. Covey v. Covey's Little...