Teal v. Bilby

• Decision Date: 05 December 1887
• Parties: TEAL and others v. BILBY, (two cases.)
• Court: U.S. Supreme Court

8 S.Ct. 239

123 U.S. 572

31 L.Ed. 263

TEAL and others v. BILBY, (two cases.)

December 5, 1887.

I. S. Botsford and A. H. Garland, for plaintiffs in error.

Wm. Warner, O. H. Dean, and Jas. Hagerman, for defendant in error.

MILLER, J.

These are separate actions brought by the same plaintiffs against the same defendant in the circuit court of the United States for the Western district of Missouri. The first was an action of replevin, under which plaintiffs got possession of 1,232 head of cattle, and the second was an action to recover damages for a failure on the part of defendant to fulfill a contract of agistment with regard to the same cattle. As the rights of the parties depended upon the same contract, and as the testimony in each case was pertinent in the other, the court very properly ordered their consolidation and trial together before the same jury. The testimony submitted to the jury on both sides of the controversy is embodied in a single bill of exceptions, under the introductory phrase that each party offered testimony tending to prove such and such facts. This bill of exceptions is very voluminous, consisting of a great variety of evidence, running through 28 pages of printed matter, and to none of it does there appear to have been any objection offered by either party. The questions presented in the record are exclusively upon the charge of the judge to the jury, on exceptions taken by the plaintiffs below, who are also plaintiffs here, and to the refusal of the court to grant such instructions as the plaintiffs' counsel prayed for. A verdict was rendered for the defendant, holding that he was entitled to the return of the property replevied from him, or to the sum of $23,835.12, which was found by the jury to be the value of his interest in the property. In regard to the other suit, the verdict of the jury was simply for the defendant. Judgments were rendered in accordance with these verdicts, to which the present writs of error are prosecuted.

It seems from the evidence that the plaintiffs, under the partnership style of J. Teal & Co., were owners of about 3,000 head of cattle, which they had driven across the plains from Oregon to a shipping point on the Union Pacific Railroad, called 'Rock Creek Station,' in Wyoming territory. These cattle were shipped from this point to Council Bluffs, in the state of Iowa, between the fourteenth day of October and the tenth day of November, 1880. On the third day of November of that year, Teal & Co. entered into a written contract with John S. Bilby, of Nodaway county, Missouri, by which Bilby agreed to keep, feed, and care for 1,500 of these cattle until December 1, 1881. By this instrument he agreed that he would so feed and care for them that they would increase in weight 450 pounds each, on an average, for which the plaintiffs were to pay him, on their delivery to them, at the rate of five cents per pound for such increase. It also appears that, before the terms of this agreement were decided upon, one lot of about 200 cattle had arrived at Council Bluffs, and had been seen by Bilby. It was a part of the agreement that the remainder, as they arrived, should be average lots with those that Bilby had seen, of which fact Mr. Bass, of the firm of Rosenbaum, Bass & Co., who resided at Council Bluffs, was to be the judge. The expense of transporting the cattle to Dawsonville, Missouri, where Mr. Bilby resided, was to be paid by plaintiffs; but if Mr. Bilby should pay any of that expense, he was to be repaid, with 10 per cent. interest upon his money on final settlement. There is also evidence to show that Mr. Bilby was a man of means, owning extensive lands in the neighborhood of Dawsonville, and accustomed to the business of feeding cattle; and the agreement was that the cattle should be weighed at Dawsonville, or the nearest scales thereto, upon their arrival, under circumstances minutely provided for, and that Bilby contracted 'to take the cattle, and winter them well on hay, straw, and stalk fields until grass comes; to be kept in inclosed pastures on good grass until the fifteenth of August, 1881, after which date, on each and every day, they shall be fed all the corn they will eat until delivered to J. Teal & Company; and that the cattle were to be redelivered to the plaintiffs between the fifteenth day of October and the first day of December, 1881, by giving 10 days' notice. Bilby was also to be responsible for all cattle lost, strayed, or stolen, and for any dying through his neglect or carelessness; but, if any died through causes which were unavoidable, the loss of such cattle was to be borne by Teal & Co., and the loss of the feed by Bilby. Another provision, to which some importance is attached, is in the following language: 'If any steers die, John S. Bilby shall preserve the hides as evidence of death, and the ears, if there are any earmarks.'

It is agreed that 268 of these cattle were not recovered by plaintiffs under the writ of replevin, nor were they tendered by Bilby under the tender which he sets up in his answer; nor did the weight of the cattle at the time Bilby was ready to deliver them, or offered to deliver them, or at the time they were replevied, come up to that which was required to make the increase of 450 pounds each on an average. It is on the ground of this failure to bring the cattle up to the contract weight, alleging that it was the fault of Bilby in not giving sufficient care and attention to them, as well as want of proper feed according to the contract, by reason of which a part of the 268 died and were lost, that the plaintiffs assume that they have a right to recover possession of the property without making any compensation to Bilby for his services. A large amount of testimony was submitted to the jury on both sides with regard to this question of proper feeding, care, and attention, without objection, apparently, by either party, as well as instructions asked of the court to the jury upon these subjects, and the consequences of the supposed failure on the part of Bilby to comply with his contract. The exceptions taken to the general charge of the judge are also numerous, and many of them too unimportant to receive special notice at our hands.

A principal question, and the most important one in the case, arises out of the fact that Bilby gave testimony of a subsequent oral agreement changing very materially the terms of the written contract. The bill of exceptions which relates to the evidence introduced on this subject reads as follows: 'The defendant introduced evidence tending to show that the appearance of the cattle when they were delivered to him by the plaintiffs would not disclose the treatment they had received previously, and that it required time to develop the evil effects of such treatment; that, although the cattle might appear to be very thin and weak, yet it would not be apparent that they were diseased; on the contrary, experienced cattle-men might well suppose that they would, upon the treatment provided for in the contract, soon recover their flesh and strength. He also introduced testimony tending to show, not only the death of two hundred and sixty-eight of the cattle as aforesaid, but that as to many of the others that survived the winter of 1880 and 1881, although they were fed upon corn, all they could eat during the winter, they always presented a scabby appearance and did not thrive from their food, and that when the spring came they were placed upon grass. They did...