Unke v. Thorpe

• Decision Date: 25 June 1953
• Docket Number: No. 9347,9347
• Citation: 75 S.D. 65,59 N.W.2d 419
• Parties: UNKE v. THORPE et al.
• Court: South Dakota Supreme Court

Page 419

59 N.W.2d 419

75 S.D. 65

UNKE v. THORPE et al.

No. 9347.

Supreme Court of South Dakota.

June 25, 1953.

Rehearing Denied Aug. 12, 1953.

Bielski, Elliott & Lewis, Sioux Falls, for plaintiff and appellant.

Gale B. Wyman, Belle Fourche, for defendants and respondents

SMITH, Judge.

The complaint of the plaintiff, W. E. Unke, prays for damages because the defendants, F. L. Thorpe and C. W. Waters, who had agreed in writing to sell and deliver to him '600 to 800' bushels of alfalfa seed, delivered to him only about 301 bushels of such seed. The defense that the contract was induced by fraud was sustained by the trial court and judgment dismissing the action was entered. The principal assignments question the sufficiency of the evidence to support the findings, and whether the findings support the judgment. Because we have concluded the undisputed facts reveal that plaintiff does not have a cause of action, we affirm the judgment.

The trial was to the court without a jury. The evidence we are about to outline was received subject to the objection of the plaintiff that the contract in writing supersedes all of the oral negotiations or stipulations of the parties. Cf. SDC 10.0604.

Mr. Unke, the plaintiff, operates a seed and feed mill at Bridgewater, South Dakota. He deals in a considerable quantity of alfalfa seed, principally at wholesale to dealers. In the past he had purchased such seed through one O. Christopherson, who operates a seed and feed mill at Newell, South Dakota. In a telephone conversation on October 29, 1950, Christopherson advised Unke he 'had two farmers that had considerable alfalfa seed' to sell. Unke arrived at Newell the next morning, examined a sample of the alfalfa seed which had been cleaned at a Newell elevator, and together with Christopherson drove into the country a few miles to the ranch of the defendants Thorpe and Waters. There they talked with Mr. Thorpe, examined some of the threshed seed in sacks and watched the threshing operation in process. Mr. Waters was not at the ranch and Mr. Thorpe did not care to deal without him. An arrangement was made for Thorpe and Waters to meet Unke at the Christopherson elevator in Newell at one o'clock that afternoon. After the parties met some talk was had about the amount of seed the defendants would have to sell, and about the price for which they would sell. After they had agreed on a price of 53 cents per pound if Mr. Unke would pay Christopherson's charges for cleaning the seed after it was threshed, and it appeared that they were going to reach a bargain, Unke prepared a written contract and tendered it to the defendants for their approval. In that writing he had inserted the figures '600 to 800 bushels'. There is a conflict in the testimony with reference to the conversation that then followed about those figures. The defendants and two others present testified that they said they did not know how much seed they would have and they were selling only their 1950 crop. The plaintiff and his employee who was present deny that anything was said about the 1950 crop. The plaintiff, on the other hand, testified in substance that he said he must have a definite figure because he was intending to sell seed against this contract. Defendants deny that such a statement was made. According to other testimony plaintiff said he wanted a definite figure in there so in case the price went down the defendants could not buy up all of the seed in the area and load it on him at the contract price.

The contract was eventually signed and reads as follows:

'Purchase or Delivery Order

Bridgewater Milling Co.

Bridgewater, S. D.

No. 517

To Thorp & Waters

Address Box 427 Deadwood S D Deliver to Bridgewater Milling Co.

Bridgewater S D

Date Oct. 30, 1950

Ordered by W E Unke

Date wanter When cleaned next 30 days

Via truck

Terms Cash

F.O.B. Christopherson Elev.

Quantity Unit Description of articles, including special Unit

instructions as to quality, size, and style of Price

package, etc.

600 to 800 S.D. Alfalfa-(like Sample taken) at to be recleaned 53.00

Bu. at Christopherson Elev. Buyer to pay cleaning cwt

charge.--advance payment--$2500.00

Seller----

Seller--F. L. Thorpe (signed)

Issue only one copy of invoice and unless otherwise instructed mail direct to Bridgewater Milling Co.

at

Seller--C. W. Waters--Partner

Bridgewater Milling Co.

By W. E. Unke' Unke arranged with Christopherson to clean the seed. The threshing continued until about November 20th, and each day's threshing was delivered to Christopherson at Newell for cleaning. However, only 301 bushels of seed like the sample Unke had examined on October 30th were recovered by the threshing and cleaning process. That seed was delivered to Mr. Unke. In addition, about 30 sacks of third and fourth grade seed were recovered and sold to Mr. Christopherson. There is no indication in the evidence that a greater amount of seed like the sample could have been recovered by the Christopherson equipment.

It is axiomatic that the surrounding circumstances from which a contract stems are to be considered when interpreting its provisions. IX Wigmore, Evidence, 3d Ed., Sec. 2471; 3 Williston, Contracts, Rev. Ed., Sec. 618; Janssen v. Tusha, 66 S.D. 604, 287 N.W. 501; and Eustis Mining Co. v. Beer, Sondheimer & Co., D.C., 239 F. 976. Of controlling significance here are the facts that Unke appeared at Newell because some ranchers had alfalfa seed they desired to sell; there he examined some of the seed which had been cleaned, then he went to their ranch, watched the threshing process, and examined sacks of the threshed seed. The contract which he wrote provided that the seed he was purchasing was to be cleaned at his cost at the Christopherson elevator and provided also for delivery 'when cleaned next 30 days'. When the contract of these parties is read in the light of its setting and object, and the oral expressions of intentions of the parties are excluded from consideration, cf. IX Wigmore, 3d Ed., Evidence, Sec. 2471, we think it is obvious that the contract is not subject to the interpretation placed upon it by plaintiff, viz., that it provides for the delivery by defendants to plaintiff of not less than 600 nor more than 800 bushels of alfalfa seed in general of the quality exhibited at the time the contract was made. It is our opinion that the only interpretation which the undisputed surrounding circumstances and the words of the contract warrant is that the parties contracted for the delivery of 600 to 800 bushels of a specific crop of alfalfa, viz., the crop the defendants were threshing. Thus the question arises whether, having acted in good faith, and having delivered to plaintiff all of the seed of the described quality the mutually contemplated crop produced, are they under any further obligation to plaintiff? This court answered that question in McCaull-Webster Elevator Company v. Steele Brothers, 43 S.D. 485, 180 N.W....