Shrum v. Zeltwanger, No. 4665

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore GUTHRIE; RAPER
PartiesHoward A. SHRUM and Ralph Prather, Appellants (Defendants below), v. William ZELTWANGER, Jr., and Heinhold Hog Market, Inc., Appellees (Plaintiffs below).
Docket NumberNo. 4665
Decision Date09 February 1977

Page 1384

559 P.2d 1384
Howard A. SHRUM and Ralph Prather, Appellants (Defendants below),
v.
William ZELTWANGER, Jr., and Heinhold Hog Market, Inc., Appellees (Plaintiffs below).
No. 4665.
Supreme Court of Wyoming.
Feb. 9, 1977.

Page 1385

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.

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

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

'LIVESTOCK BILL OF SALE AND CONTRACT

'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.

'(Seal)

/s/ Howard A. Shrum, Seller

'Witness

/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.

Page 1386

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...

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  • Mantle v. N. Star Energy &amp; Constr. LLC, S-18-0101
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 2019
    ...be what a reasonable man in the position of the other party would conclude his manifestations to mean." Id. (citing Shrum v. Zeltwanger , 559 P.2d 1384, 1387 (Wyo. 1977) ). Concerning whether the terms of an alleged contract are sufficiently definite to support a finding of formation, we ha......
  • INTERN. SURPLUS LINES v. Univ. of Wyo. Res. Corp., No. 92-CV-0310-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • April 25, 1994
    ...Furthermore, "the intent of the parties can only be ascertained by an objective not subjective approach ..." Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977); accord Hayes v. American Nat'l Bank of Powell, 784 P.2d 599, 604 If the Court concludes that the contract is in fact unambiguous ......
  • Connett v. Fremont County School Dist. No. 6, Fremont County, No. 4892
    • United States
    • United States State Supreme Court of Wyoming
    • July 11, 1978
    ...Seay v. Vialpando, supra; Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714, 717; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387; Bluejacket v. Carney, Wyo., 550 P.2d 494, 497. The moving party in a summary judgment proceeding has the burden of showing the absence of a......
  • Roussalis v. Wyoming Medical Center, Inc., No. 96-219.
    • United States
    • United States State Supreme Court of Wyoming
    • April 20, 2000
    ...be held to be what a reasonable man in the position of the other party would conclude his manifestations to mean. Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977); accord, Wyoming Game and Fish Comm'n v. Mills Co., 701 P.2d 819, 822 (Wyo.1985). As the doctors have correctly pointed out, ......
  • Request a trial to view additional results
40 cases
  • Mantle v. N. Star Energy &amp; Constr. LLC, S-18-0101
    • United States
    • United States State Supreme Court of Wyoming
    • March 12, 2019
    ...be what a reasonable man in the position of the other party would conclude his manifestations to mean." Id. (citing Shrum v. Zeltwanger , 559 P.2d 1384, 1387 (Wyo. 1977) ). Concerning whether the terms of an alleged contract are sufficiently definite to support a finding of formation, we ha......
  • INTERN. SURPLUS LINES v. Univ. of Wyo. Res. Corp., No. 92-CV-0310-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • April 25, 1994
    ...Furthermore, "the intent of the parties can only be ascertained by an objective not subjective approach ..." Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977); accord Hayes v. American Nat'l Bank of Powell, 784 P.2d 599, 604 If the Court concludes that the contract is in fact unambiguous ......
  • Connett v. Fremont County School Dist. No. 6, Fremont County, No. 4892
    • United States
    • United States State Supreme Court of Wyoming
    • July 11, 1978
    ...Seay v. Vialpando, supra; Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714, 717; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387; Bluejacket v. Carney, Wyo., 550 P.2d 494, 497. The moving party in a summary judgment proceeding has the burden of showing the absence of a......
  • Roussalis v. Wyoming Medical Center, Inc., No. 96-219.
    • United States
    • United States State Supreme Court of Wyoming
    • April 20, 2000
    ...be held to be what a reasonable man in the position of the other party would conclude his manifestations to mean. Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977); accord, Wyoming Game and Fish Comm'n v. Mills Co., 701 P.2d 819, 822 (Wyo.1985). As the doctors have correctly pointed out, ......
  • Request a trial to view additional results

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