Wilkins v. Jackson

• Decision Date: 03 June 1924
• Docket Number: 12908.
• Citation: 227 P. 882,100 Okla. 143,1924 OK 599
• Parties: WILKINS v. JACKSON.
• Court: Oklahoma Supreme Court

227 P. 882

100 Okla. 143, 1924 OK 599

WILKINS v. JACKSON.

No. 12908.

Supreme Court of Oklahoma

June 3, 1924

Rehearing Denied July 29, 1924.

Syllabus by the Court.

Where in a contract of sale of personal property, the price is left blank the law will fix the price at the reasonable or market value at the time of delivery.

Where by contract the seller was to gather the corn and the buyer was to receive it at the place where gathered, and the seller gathered the corn and the buyer received it, delivery was made at the time the corn was gathered.

Commissioners' Opinion, Division No. 1.

Appeal from Superior Court, Pottawatomie County; Leander G. Pitman Judge.

Action by C. P. Jackson against Mrs. N.C. Wilkins. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

G. C Abernathy and Edward Howell, both of Shawnee, for plaintiff in error.

Wyatt & Waldrep, of Shawnee, for defendant in error.

RAY, C.

Plaintiff in error, defendant below, appeals from an adverse judgment of $1,000, which she claims to be excessive. Plaintiff recovered on two causes of action but error is assigned only as to the first.

C. P Jackson, assignee of J. J. Ertle and A. A. Ertle, commenced the action to recover the value of 836 bushels of corn alleged to have been delivered by the Ertles to the defendant under a written contract for which the defendant agreed to pay the reasonable value, alleged to be $1.60 per bushel, or of the total value of $1,337.60. The parties never at any time agreed upon the price to be paid.

The written contract under which the corn was alleged to have been delivered was made a part of the petition, and is as follows:

"McLoud, Oklahoma, Oct. 12, 1916.

This contract entered into this 12th day of Oct., 1916, by and between A. A. and J. J. Ertle, parties of the first part and N.C. Wilkins, party of the second part, to wit:

That in the consideration of N.C. Wilkins, party of the second part signing the bond of A. A. and J. J. Ertle for the sum of seventeen hundred dollars, the said A. A. and J. J. Ertle are to gather from their Indian lease one mile north and two miles east of McLoud, Oklahoma, known as the Jess Barnett lease corn, to the amount of two thousand bushels and store same in barn of said N.C. Wilkins on her farm, same being southeast quarter of section 21, in township 12 north of range 2 east, in Lincoln county, Oklahoma, said corn to be gathered as fast as possible within the next 30 days and said A. A. and J. J. Ertle are to sell said corn to said N.C. Wilkins at ______ per bushel and said N.C. Wilkins is to pay said A. A. and J. J. Ertle for said corn when the lawsuit now pending between A. A. and J. J. Ertle and the First National Bank of McLoud, Oklahoma, is settled, if suit is gained by A. A. and J. J. Ertle, and said N.C. Wilkins is to pay said A. A. and J. J. Ertle for corn less amount they might owe her, and if suit is gained by First National Bank said N.C. Wilkins is to pay for said corn as ordered by the court. Said N.C. Wilkins is to haul said corn from lease of said A. A. and J. J. Ertle to her residence stated above."

The corn was received by the defendant and by her hauled to her place between the time the contract was entered into, October 12, 1916, and some time in January, 1917. Plaintiff was permitted, over the objection of the defendant, to prove the market value of the corn as of August, 1917, which showed the market value at that time to have been from $2.10 to $2.25 per bushel. Plaintiff offered no proof as to value at the time the contract was made or at the time of delivery. The defendant's evidence showed that at the time the contract was entered into, and at the time the corn was received by defendant, the market value was from 65 cents to 75 cents per bushel. The testimony was conflicting as to the number of bushels delivered.

The court gave this instruction, which was excepted to by the defendant:

"If you find for the plaintiff you must assess his recovery in such sum as you may find from the evidence is due the plaintiff for the corn delivered under the contract referred to in this case at the price you believe from a preponderance of the evidence the defendant was to pay for the corn, such sum to be credited with the amounts due the defendant as stated in these instructions."

This instruction, not being modified or explained by any other instruction, placed the responsibility upon the jury of determining when the defendant became the owner of the corn, although it required an interpretation of the written contract. It was for the court, and not the jury, to interpret the written contract. Whether or not, and when, property passes is dependent upon the intention of the parties to the contract, and that intention must be gathered from the language of the instrument where it is clear and unambiguous.

It is clear that the jury fixed the value of the corn on the evidence offered by the plaintiff as of August, 1917. It is conceded by the plaintiff in his brief that in arriving...