Town of Lovell v. Menhall

• Decision Date: 29 October 1963
• Docket Number: No. 3132,3132
• Parties: The TOWN OF LOVELL, a Municipal Corporation, Appellant (Defendant below), v. J. W. MENHALL, d/b/a Red Ball Parking Meters, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 109

386 P.2d 109

The TOWN OF LOVELL, a Municipal Corporation, Appellant (Defendant below), v. J. W. MENHALL, d/b/a Red Ball Parking Meters, Appellee (Plaintiff below).

No. 3132.

Supreme Court of Wyoming.

Oct. 29, 1963.

L. A. Bowman and Bowman & Bowman, Lovell, for appellant.

Robert A. Gish and Zaring & Gish, Basin, for respondent.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice GRAY delivered the following opinion with which Chief Justice PARKER concurs.

This case is before us on the claim of the Town of Lovell, defendant, that the trial court erred in enforcing against it a contract entered into with plaintiff, J. W. Menhall d/b/a Red Ball Parking Meters, relating to the acquisition, installation, and operation of parking meters by defendant upon the streets of the town. We shall later refer to the merits of the case to the extent thought necessary to meet the somewhat unusual circumstances that have confronted us in reaching a final disposition of the proceeding, but for the moment some comment appears warranted on what has happened to the case here.

The case was submitted on briefs and oral argument on March 20, 1963. Subsequently the contentions of the parties were carefully considered and reviewed and two separate opinions were prepared, neither of which has been accepted by a majority as the opinion of the court. It has proved to be a difficult matter. Two of the justices believe the judgment of the lower court should be affirmed and two justices believe the judgment should be reversed. No doubt such an unfortunate impasse is to be anticipated inasmuch as we are a four-member court, but our difficulty does not end there. We have even been unable to agree on a procedure to be followed where, as a matter of law, a judgment of a lower court must stand affirmed by reason of our equal division. Some members think a short per curiam opinion simply reciting the equal division of the court as the reason for affirmance should be utilized. Other members think this will not suffice.

After some research of the matter of procedure followed by the courts of our sister states and the United States Supreme Court, the writer is convinced that the first alternative is to be preferred. This for the reason that other than Mississippi, none of those courts regard disposition by an equally divided court of a pending case as establishing precedent or settling any principles of law. An informative discussion of the subject is contained in the Mississippi case of Robertson v. Mississippi Valley Co., 120 Miss. 159, 81 So. 799, 800-807, and many decisions of several state courts following the foregoing rule are set forth in the dissenting opinion. See also Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 622, 54 L.Ed. 1001; Buroker v. Brown, 241 Ind. 421, 172 N.E.2d 849, 850; and 21 C.J.S. Courts § 189c, p. 307. In fact, we seem to be committed to that rule by the early case of McFarland v. Railway Officials' & Employes' Acc. Ass'n of Indianapolis, 5 Wyo. 126, 38 P. 347, 27 L.R.A. 48, 63 Am.St.Rep. 29, rehearing denied 5 Wyo. 126, 38 P. 677, 27 L.R.A. 48, 63 Am.St.Rep. 29, wherein it was said that no weight could be given to the affirmance of a judgment by the United States Supreme Court because equally divided for the reason that such 'decision is not to be considered as settling any principle.'

As a consequence, if an opinion discussing in detail the merits of the contentions of the parties upon which the court cannot agree adds nothing to the body of the law, what useful purpose has been served? Courtright v. Legislative Statutory Commission, 100 Colo. 82, 65 P.2d 710, certiorari denied 302 U.S. 695, 58 S.Ct. 13, 82 L.Ed. 537; and Ward v. Davis, 177 Kan. 629, 281 P.2d 1084, 1085. There is grave danger that such opinions will cause misunderstandings and difficulties. Johns v. Johns, 20 Md. 58. For such reason it has become the practice of an overwhelming number of the courts to resort to the short per curiam opinion above mentioned.

What our procedure should be is, of course, a matter for the full court. In this we are not aided by Rule 13, Wyo.Sup.Ct., or the statute, § 5-13, W.S.1957, that relates to the matter. As previously stated, the writer prefers to follow the well-established practice of utilizing the short form per curiam because no compelling or valid reason suggests itself for rejecting the benefits of experience in other courts. However, as also stated, agreement on this score has not been reached and under the circumstances the only alternative would seem to be to set forth briefly the reasons for concluding that the action taken by the trial court should be upheld.

Claiming that defendant had breached the agreement between the parties relating to parking meters by refusing to operate and maintain the same, plaintiff commenced this action seeking damages, or in the alternative, specific performance. Judgment was entered for plaintiff requiring defendant to specifically perform the contract until plaintiff had received the agreed value of the meters or if defendant elected not to perform, to respond in damages. Upon denial of a motion for new trial and without prejudice to its rights on appeal, defendant elected to perform in the event the judgment was affirmed.

The principal contention advanced by defendant is that the contract is vague and ambiguous and having been executed on a printed form prepared and furnished by plaintiff that it must be strictly construed against plaintiff. Under that principle it is then argued that the contract did no more than to create a lease or bailment terminable at will after the first year with option to purchase, and defendant, never having exercised the option, was free to terminate the agreement in its discretion. Plaintiff, on the other hand, contends that the trial court was correct in construing the contract to constitute a binding contract of purchase.

We agree that the contract is somewhat ambiguous in that the language used fails within its four corners to furnish ready identification of the nature of the instrument. However, we are not disposed to apply this rule of construction to the extent suggested by defendant. It appears on the face of the instrument that defendant's attorney reviewed and approved the contract as to form and under those circumstances the rule is limited in application. Bee Bldg. Co. v. Peters Trust Co., 106 Neb. 294, 183 N.W. 302, 304. Further than this, the rule is sparingly applied and when the general object and purpose of the instrument can be ascertained by application of other applicable principles, resort will not be taken to the rule suggested. 17A C.J.S. Contracts § 324, p. 224.

The instrument in question is entitled 'LEASE AGREEMENT' ¹ and among other things recites that defendant agrees to lease from plaintiff some 224 parking meters of an agreed value of $64.50 each; that defendant is to pay rental equal to 50 percent of the net revenue received from use of the meters; and that defendant agrees to maintain the meters in good operating condition until the purchase price is paid. Defendant was also granted the option to purchase the meters by applying rentals which had already been paid against the agreed value and paying the balance due. Plaintiff retained title to the meters but agreed to deliver title to defendant upon receipt of the agreed value either through payment of rentals in such amount or by defendant's exercising its option in the manner described. It was also provided that the arrangement would be for a trial period of one year following the date of installation of the meters and defendant was granted an option to terminate the agreement by giving written notice 30 days prior to the expiration of the trial period.

In this connection it should also be mentioned that prior to the agreement a sales representative of plaintiff appeared before the town council and quoted a price of $64.50 for each meter required and also advised the council that it was customary to handle the transaction under a lease agreement whereby one-half of the revenue from the meters was paid to the meter company until the price quoted had been paid in full. The council agreed to proceed in keeping with such understanding and on August 16, 1955, enacted an ordinance with respect to the acquisition, installation, regulation, and use of such meters. In substance the ordinance provided that the meters would be installed at places designated by the mayor and town council, fixed rates to be charged, provided penalties for violation, authorized and directed that the town 'shall purchase, lease or otherwise acquire as many meters as may be necessary' and that the cost of acquiring such meters was to be paid out of a percentage of the revenue produced, and 'such contract shall provide that the Town of Lovell may discontinue the use of said meters, without obligation, at anytime up to one year from the date of installation.' The town council, under date of November 21, 1960, repealed and revoked such ordinance.

In an approach to the contention of defendant as to the contract, the cardinal rule to be kept in mind is that the intention of the parties as exhibited by the language used shall govern, and greater regard is to be had to the clear intent than to particular words used in expressing such intent. Covey v. Covey's Little America, Inc., Wyo., 378 P.2d 506, 512; and Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 166 A.L.R. 1329. In Studebaker Bros. Co. of Utah v. Mau, 13 Wyo. 358, 80 P. 151, 153, 110 Am.St.Rep. 1001, rehearing denied 14 Wyo. 68, 82 P. 2, this court was called upon to determine whether a certain instrument was a conditional sales agreement or a chattel mortgage. The principles there stated are particularly pertinent here and in this case it was said:

'The proper construction of contracts of the character of the one involved in this action is always attended with some difficulty by reason of the...