Uptegrove v. Elsasser, 33830

• Decision Date: 23 December 1955
• Docket Number: No. 33830,33830
• Citation: 161 Neb. 527,74 N.W.2d 61
• Parties: E. L. UPTEGROVE, Appellee, v. John C. ELSASSER, Appellant.
• Court: Nebraska Supreme Court

Page 61

74 N.W.2d 61

161 Neb. 527

E. L. UPTEGROVE, Appellee, v. John C. ELSASSER, Appellant.

No. 33830.

Supreme Court of Nebraska.

Dec. 23, 1955.

Syllabus by the Court.

1. In an equity suit it is the duty of this court to try the issues de novo and to reach an independent conclusion without reference to the findings of the district court.

2. In the consideration of an equity suit on appeal, if there is an irreconcilable conflict in the testimony on a material issue, this court will, in determining the weight of the evidence of witnesses who appeared in court to testify, consider the fact that the trial court observed them and their manner of testifying, and must have accepted one version of the facts rather than the other.

3. An action upon an oral agreement for the feeding and caring of livestock on shares, which is continuing in its nature without a fixed termination date, is barred in 4 years from the date the action accrues.

4. Where the nature of the contract and the situation of the parties require that it be adjudged that the obligation is a continuing one which is not violated or broken until there is a refusal to honor a demand, the demand creates the liability and the statute of limitations runs from such demand.

5. Laches does not, like limitation, grow out of the mere passage of time, but is founded upon the inequity of permitting claims to be enforced where there have been changes of condition resulting from delay which operate to the prejudice of the party asserting it as a defense.

6. Laches is not a defense in an equity case where there has been no material change in defendant's position.

Heaton & Heaton, Martin, ton, Martin, Davis & Mattoon, Sidney, for appellant.

L. M. Clinton, Sidney, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is a suit in equity for an accounting instituted by E. L. Uptegrove as plaintiff against John C. Elsasser, defendant, under the terms of a lease of real estate and an oral contract for the care and keep of a herd of cattle and their increase. The trial court found that defendant should be required to account. An accounting was had and thereafter plaintiff was awarded a judgment against the defendant for $14,844.32 and costs. The defendant appeals.

The record shows that plaintiff was the owner of certain farm and pasture lands and a herd of 180 head of cattle in 1934. During the years 1932 and 1933 defendant was employed by the plaintiff as farm manager in farming the tillable lands and in feeding and caring for the cattle. In 1934 plaintiff leased the lands to the defendant and entered into an oral agreement with him with reference to the cattle on the place. By the oral agreement defendant was to select from the herd 40 cows, 60 calves, and a bull. The balance was to be sold by the defendant and the proceeds delivered to the plaintiff. The base herd thus selected was to be kept intact with stock raised or purchased, and the parties to the agreement were to share the increase equally. Plaintiff was to furnish the pasture and other land upon which to raise feed for the cattle, and defendant was to bear all other expense with reference to the feeding and caring for the cattle. The record shows that defendant selected 81 head of cattle for shipment, 3 of which died. The remaining 78 head were sold and the proceeds delivered to plaintiff. The defendant contends that the herd consisted of 155 head, and that 78 were sold leaving 77 head in the base herd. Defendant states that prior to his taking over the base herd there were 140 head of cattle and 30 calves, and that 15 head died because of their poor condition, as a result of a lack of sufficient feed and pasture. Defendant also testifies that he lost 34 calves and 7 cows in one blizzard, a fact he does not appear to have reported to the plaintiff. The defendant was to have full charge of the sale, replacement, and purchase of cattle, and was to keep the base herd intact except for losses of livestock from natural causes. The record shows, more or less regularly, the sales of cattle raised until 1946. Plaintiff received checks from the defendant from time to time for his share of the increase, the last one bearing the date of December 31, 1946. Defendant states that the last of the original base herd was sold in 1943, plaintiff providing a bill of sale for this purpose. The record shows purchases of other cattle by the defendant, some of which he claimed as his own. In any event, he continued to pay plaintiff for his share of the increase until December 31, 1946. These payments were accepted by plaintiff and found to be in full settlement of plaintiff's one-half interest in the increase each year. For the years 1946, 1947, and 1948, the evidence of defendant is fragmentary and indefinite concerning the purchase or sale of cattle. He contends that plaintiff's cattle were sold and accounted for, and he states that he owed pasture rent for his own cattle. Plaintiff states that there was never any conversation about pasture rent and that no change had been made in the original oral agreement. Defendant's income tax returns for 1947, 1948, and 1949 show cattle sales in the amounts of $4,677.63, $3,565.50, and $5,400.33, respectively, for cattle raised. Defendant's 1948 income tax return shows a sale of 116 head of cattle purchased and not raised in the amount of $20,032.05. His 1949 income tax return shows a sale of 88 head of cattle, purchased and not raised, in the amount of $10,189.14.

The defendant contends that he fed and cared for the cattle the year previous to the cattle agreement on the basis that he should have one-half the calf crop for so doing. He testifies that the pasture was inadequate and that he was compelled to purchase feed in the amount of $1,800 for which he was not reimbursed by the plaintiff. Plaintiff testifies that he gave defendant the farm machinery and equipment on the farm in payment of this item, which the defendant accepted. Defendant further alleges that plaintiff gave him the base herd in payment for the feed. The title to the original herd remained in plaintiff until it was sold in 1943. The trial court found against the defendant on this contention, and the evidence clearly supports this finding.

The record further shows that the plaintiff leased certain wheat land to the defendant for an agreed crop rental of one-third of the small grain delivered to market free of all cost to the plaintiff. Plaintiff alleges that in 1950 defendant raised 11,500 bushels of wheat and that he has received 3,463 bushels and 20 pounds thereof and that there is due him 370 bushels and 40 pounds. Plaintiff also alleges that defendant failed to deliver the 1950 crop to market and that plaintiff expended $249.68 to have the wheat delivered. Defendant admits this item as owing to the plaintiff. Plaintiff alleges as a second cause of action that he assigned certain dividends of the value of $473.05 due from the Farmers Union Co-operative Association at Gurley, Nebraska, to the defendant to be used by him in trade. Defendant used $346.67 of such dividends and has failed to account for the balance. Defendant admits using the $346.67 and tendered the balance to the plaintiff by his answer.

Defendant denies that there was any increase from the cattle after January 1, 1947, and denies that plaintiff had any interest in any cattle in the possession of defendant at that time. Defendant alleges that he harvested 350 acres of wheat for the plaintiff in 1934 at a fair and reasonable cost of $1,050, which has not been paid. He testifies, also, that he hauled 6,000 bushels of wheat to market for plaintiff in 1934, the fair and reasonable value of which was $300. He testifies, also, that he hauled 6,000 bushels of wheat for plaintiff in 1935 which was of the fair and reasonable value of $300. He testifies that he hauled grain for plaintiff raised by other tenants at various times for which he was not paid. A failure of proof clearly existed as to the last item mentioned. The evidence of the defendant is that he retained 37 cows, 30 calves, and 1 bull as the base herd and that 7 cows and 34 calves died in the spring of 1935, leaving a base herd of 30 cows and 1 bull. With reference to the 1950 wheat, defendant testifies that plaintiff's share was 3,575.91 bushels, that plaintiff sold 3,475.25 bushels, and that 30 bushels were left in the bin as spoiled wheat. The defendant accounts for the shortage of 70.66 bushels as shrinkage before the wheat was sold.

The trial court found against the defendant on his claim for harvesting wheat for the plaintiff in 1934 and for hauling wheat for the plaintiff in 1934 and 1935. They were not obligations growing out of the oral agreement which was the basis of the accounting suit before us. They were incurred according to the defendant's own testimony before the agreement was made. These claims are no part of or incidental to the oral agreement which is the basis of this accounting action. Such claims were properly disallowed in the accounting.

Upon the foregoing evidence the trial court found that the oral agreement was made as alleged and that the least number of cattle in the herd for...