Shrum v. Zeltwanger, 4665

Decision Date09 February 1977
Docket NumberNo. 4665,4665
Citation559 P.2d 1384
PartiesHoward A. SHRUM and Ralph Prather, Appellants (Defendants below), v. William ZELTWANGER, Jr., and Heinhold Hog Market, Inc., Appellees (Plaintiffs below).
CourtWyoming Supreme Court

Tom C. Toner, Redle, Yonkee & Arney, Sheridan, signed the brief and appeared in oral argument on behalf of appellants.

Micheal K. Shoumaker, Badley & Shoumaker, Sheridan, signed the brief and appeared in oral argument on behalf of appellees.


RAPER, Justice.

What is a 'cow?' This appeal comes here as an ultimate result of a dispute between plaintiffs-appellees contract buyers and defendants-appellants contract sellers of 134 'cows,' over the answer to that question. The trial judge granted summary judgment to the plaintiffs for return of $6,700.00 they paid as a deposit on purchase of the cows and by the same summary action denied defendants' counterclaim. We will hold that summary judgment was improvidently granted, reverse and remand for trial of genuine issues of fact.

While the parties fail to hone their arguments into definitive issues, there is only one question as we see it. Do the depositions in support of the motion before the district court really disclose no issue of material fact?

One significant fact is not in dispute. The parties entered into a written agreement as follows:

'Aug. 3, 1973


'This Certifies, that Howard Shrum of Sheridan has this day bargained and sold to Heinhold Cattle Mkt., 134 head of Cows to be delivered F.O.B. cars, on or before 17 day of Sept., 1973 at $450. per head or at $_ _ per cwt., to be weighed on twelve hours overnight stand and hauled at _ _ with _ _ cut back. Received as part payment $6,700 balance of $53,600 to be paid on delivery. I hereby guarantee title thereto, viz:

                No                              Location of   Price
                Hd.   Description   Brands       Brands      Per Head
                134   Hereford-Few
                      BB Cows         RH

'All of above stock to be free from encumbrance, including taxes for year of delivery, and to pass federal and state inspection for interstate shipment. Health and brand certificates to be furnished purchaser, free of charge, on delivery. Above to be free of contagious disease and in merchantable condition.


/s/ Howard A. Shrum, Seller


/s/ Steve Harris

'/s/ Wm. Zeltwanger, Jr. Purchaser'

Steve Harris, shown as a witness on the document, was the agent-buyer for the plaintiffs as purchasers. He negotiated the contract and was the active participant for the plaintiffs. Defendant Shrum negotiated the sale for the defendants.

From depositions on file, other peripheral circumstances are apparent. Prior to and when time for delivery arrived, defendants' cattle were in two groups, 54 at Story, Wyoming, and 80 at Otter, Montana. About two weeks before the delivery date, Harris went to Story along with a prospective buyer from his principal to look at the animals. Harris, though requested, did not inspect the Story group at the time of signing the contract. Defendant Shrum claims that at the time of the pre-delivery visit Harris said they were better than he expected. Harris claims he saw no yearling heifers. The visit is not in dispute. At the date of delivery, however, at that site, there were six or seven that had not been bred.

Harris made no examination of the cattle at Otter at any time prior to the delivery date, though at the time the contract was signed, Shrum asked Harris to inspect them, as well as those at Story. Harris said he trusted Shrum and thought no inspection necessary. Of all the cattle, at both Story and Otter, Harris refused to accept 72, as being heifers, which he claimed were not 'cows' under the contract.

Shrum, when testifying by deposition, claimed that at the time the contract was signed, he told Harris that he 'had 134 heifers and some young cows on them'; 'I told him they weren't cows, they were heifers and some young cows on them. And he said that took care of the female end of the bovine family. So, I trusted his word and left it go.' Harris deposed that Shrum represented all were cows that had lost calves and he assumed he was buying bred cows.

Harris, in his deposition, further testified as follows:

'Well, it's always been my thought that a cow is a female bovine that's already had a calf. Normally they're not referred to as a cow until after they've weaned their first calf. Even at that time they were often referred to as first-calf heifers.'

Harris offered to take what he considered to be cows under the contract but refused the others. Shrum refused, claiming all were cows under their agreement.

The trial judge entered an order granting summary judgment for plaintiffs for the recited reason that: 'There was a mutual mistake in the formation of the contract and the Plaintiffs should be entitled to judgment as a matter of law.' As we read the depositions and as outlined in the foregoing narration, the district judge apparently decided that since the plaintiffs assert they intended one thing and the defendants assert they intended another, there was mutual mistake. That is not mutual mistake.

As nearly as we can determine, through search of West's Wyoming Digest, this court has not undertaken to define the expression 'mutual mistake,' though it has recognized that a contract may be cancelled on that ground. Goodson v. Smith, 1952, 69 Wyo. 439, 243 P.2d 165, reh. den. 244 P.2d 805. Mutual mistake makes a contract voidable. Kipp v. Agee, Wyo.1969, 457 P.2d 673, reh. den. 458 P.2d 728. In this tribunal it has likewise been recognized that an instrument may be reformed on that ground. Arndt v. Sheridan Congregation of Jehovah's Witnesses, Inc., Wyo.1967, 429 P.2d 326; Russell v. Curran, 1949, 66 Wyo. 173, 206 P.2d 1159.

' Mutual mistake' is a common utterance in the law of contracts, however, and has come to have a universal meaning. A mutual mistake is one which is reciprocal and common to both parties, each alike laboring under the same misconception in respect to the terms of the written instrument. De Long v. Cobb, 1959, 215 Ga. 500, 503, 111 S.E.2d 89, 92; Silver v. Overhead Door Co., 1949, 311 Ky. 650, 225 S.W.2d 115; Belknap v. Bank of Prospect, 1935, 259 Ky. 385, 82 S.W.2d 504; Otto v. L. L. Coryell & Son, 1942, 141 Neb. 498, 3 N.W.2d 915; Commercial Standard Insurance Co. v. White, Tex.Civ.App.1967, 423 S.W.2d 427; Anderson Brothers Corporation v. O'Meara, 5 Cir. 1962, 306 F.2d 672; B. L. Ivey Construction Company v. Pilot Fire and Casualty Company, U.S.D.C., N.D.Ga.1968, 295 F.Supp. 840. More briefly stated, it means a situation where both parties share the same misconception. 13 Williston on Contracts, 3d Ed. (Jaeger) § 1550A, p. 168, and, in the same volume § 1543, p. 75, pulling its effect into play, it is said:

'Where both parties assume the existence of a certain state of facts as the basis on which they enter a transaction, the transaction can be avoided by a party who is harmed, if the assumption is erroneous."

Some courts have worded their definitions in different ways and it is probably well to set out some of those because they are clarifying. If the intention of the parties is identical at the time of the transaction, and the written agreement does not express that intention, then a mutual mistake has occurred. Tenco, Inc. v. Manning, 1962, 59 Wash.2d 479, 368 P.2d 372. Mutual mistake may be defined as error in reducing the concurring intention of the parties to writing. Naisbitt v. Hodges, 1957, 6 Utah 2d 116, 307 P.2d 620. A mutual mistake exists where there has been a meeting of the minds of the parties and an agreement actually entered into but the agreement does not in its written form express what was really intended by the parties. Sierra Blanca Sales Company, Inc. v. Newco Industries, Inc., 1972, 84 N.M. 524, 505 P.2d 867, cert. den. 84 N.M. 512, 505 P.2d 855.

The New Mexico court has used the expression 'meeting of the minds.' We cite the case for an occasion to update and supersede use of that well-known old contract phrase with the modern expression 'mutual assent.' In order for there to be a binding contract, there must be mutual assent-a mutual manifestation to the same terms. Calamari & Perillo, Law of Contracts, HB, §§ 11 and 12, pp. 13-14. 13 Williston on Contracts, 3d Ed. (Jaeger), § 1536, p. 33, refers to 'meeting of the minds' as a 'quaintly archaic expression.' When there is mutual mistake, then there can be no mutual assent.

Since there was no mutual mistake the trial judge stated an erroneous ground for granting summary judgment. There remains a genuine dispute as to the meaning of the contract term 'cows.' One says it means one thing, the other, another. It must be realized that all that is before the court is the subjective expressions of the plaintiffs' buyer agent and the defendants and those expressions are at opposite poles. One or the other may or may not represent what the parties really intended by their transaction. The intent of the parties can only be ascertained by an objective not subjective approach in contract situations. The subjective intent of the parties is ordinarily irrelevant. An objective test is applied. A party...

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