Valentine v. Shepherd

• Decision Date: 08 November 1917
• Docket Number: Civil 1549
• Citation: 168 P. 643,19 Ariz. 241
• Parties: S. C. VALENTINE, Appellant, v. EUGENE SHEPHERD, Appellee
• Court: Arizona Supreme Court

168 P. 643

19 Ariz. 241

S. C. VALENTINE, Appellant, v. EUGENE SHEPHERD, Appellee

Civil No. 1549

Supreme Court of Arizona

November 8, 1917

APPEAL from a judgment of the Superior Court of the county of Pinal. O. J. Baughn, Judge. Reversed and remanded.

Mr Barnett E. Marks, for Appellant.

Mr. J E. O'Connor, for Appellee.

OPINION

ROSS, J.

This is an action for damages for breach of contract brought by appellee against appellant. The controversy grows out of a dispute as to the property sold and bought under the following description thereof as contained in the contract of sale, to wit:

"The party of the first part [Valentine] hereby agrees to sell to the said party of the second part [Shepherd] five hundred head, more or less, of stock cattle, including entire stock branded thus 14 on the left loin and hip and LEC on the left side, from shoulder to hip. Also the sole right to the said 14 brand and iron."

In the appellee's complaint are found, among others, two allegations, one of which undertakes to explain his and the appellant's understanding of the contract, and the other sets forth the alleged breach of the contract. These two paragraphs are as follows:

"V. That it was the understanding of both plaintiff and defendant when said contract was made that said cattle described in said contract were cattle branded 14 and other cattle branded LEC and other cattle branded with both said brands."

"Vi. Plaintiff further alleges that defendant has not delivered all of said cattle, so contracted to be delivered, and has failed and refused to deliver to this plaintiff about forty (40) head of cattle branded LEC on left side from shoulder to hip and described in the aforesaid contract; and plaintiff further alleges that defendant has failed to deliver to this plaintiff six (6) head of calves born after the 1st day of October, 1914, which said calves, under the terms of said agreement, were to be delivered free of charge to plaintiff, at plaintiff's said ranch in Pinal county Ariz., and that plaintiff was on the 1st day of May, 1915 and at all times since said day has been ready and willing to pay the defendant the amount of the purchase price of said cattle, upon delivery thereof, under the terms of the contract aforesaid."

The sufficiency of the complaint to state facts sufficient to constitute a cause of action was challenged by a demurrer. The overruling of this demurrer is assigned as error.

Conceding the truth of the allegation set forth in paragraph 6 as constituting the alleged breach of the contract, does it show that the appellant has refused or neglected to deliver any cattle that he agreed to deliver? The appellant agreed to sell the appellee "five hundred head of stock cattle, more or less," and among them was the entire stock particularly therein described -- that is, all cattle with the "14 on left loin and hip and LEC on left side from shoulder to hip." It is apparent that all of the stock bearing the described brands was to be sold and delivered to the appellee, and it is equally as clear that appellant might turn in other brands undescribed in the contract or cattle with no brands if necessary, to make up the maximum of his obligation, to wit, the "five hundred head, more or less." Stated differently, the obligation was to sell and deliver approximately 500 head of stock cattle, included in which was an indefinite number branded 14 on left loin and hip and LEC on left side from shoulder to hip, which together with other stock, with no mentioned brand or description, was to make up the cattle agreed to be sold and delivered. The language used in the contract to describe the property sold is not susceptible of a construction that would include therein cattle branded only with LEC or cattle branded only with 14 as appellee contends. The cattle agreed to be sold and delivered were to bear, on left side, all of these figures and letters, and not some of them. We have a contract then set forth in the appellee's complaint as the basis or foundation of his lawsuit, in which the appellant has agreed to sell and deliver to him cattle therein particularly described, and as a breach thereof failure and refusal to deliver cattle of entirely different brand. In other words, the breach as alleged consists of the appellant's refusal to do something that he, by the plain terms of the contract, never agreed to do.

To meet this situation and override any objections to the form of the breach as laid, the appellee in paragraph 5 quoted above undertakes to say that the understanding of both plaintiff and defendant was that the contract covered cattle branded 14, and other cattle branded LEC, and other cattle branded with both said brands. He does not undertake to say that the description contained in the contract of sale was sufficient to include, or that it does include, these brands; only that the cattle described in the contract were understood to be of three brands, instead of one. He would have the court enforce a different contract than the one he exhibits as the agreement between himself and appellant. Now, if the understanding of parties to a contract may be substituted for the contract as written out and signed by them, the appellee's explanation that cattle in three brands were intended to be conveyed instead of the cattle in one brand as appears from the wording of the contract, may be permitted to stand. This is not the law,...