Wood v. Jaeger

• Decision Date: 30 July 1954
• Docket Number: No. 9221,9221
• Citation: 128 Mont. 235,272 P.2d 725
• Parties: WOOD v. JAEGER.
• Court: Montana Supreme Court

Page 725

272 P.2d 725

128 Mont. 235

WOOD v. JAEGER.

No. 9221.

Supreme Court of Montana.

Submitted March 17, 1954.

Decided May 18, 1954.

Rehearing Denied July 30, 1954.

Murch & Wuerthner, Julius J. Wuerthner and John P. Wuerthner, Great Falls, John P. Wuerthner, Great Falls, argued orally, for appellant.

Frisbee & Moore, Cut Bank, for respondent filed no brief and did argue.

FREEBOURN, Justice.

This is an action wherein R. D. Wood, plaintiff and respondent, sued Melvin Jaeger, defendant and appellant, for damages sustained when Jaeger, through his agents, refused to accept and buy certain cattle as agreed upon by the terms of a written contract. The trial jury found its verdict for Wood in the amount of $558.75. From the judgment following such verdict Jaeger appeals.

In his complaint Wood avers that Jaeger violated the express terms of a written contract which is set out as part of the complaint in exhibit 'A', by refusing, through his agents, to receive and pay for certain cattle, and that as a result of such violation Wood had to sell the cattle rejected by Jaeger's agents, at a lesser price than agreed on in the written contract, and with added expense, whereby he suffered damages in the amount of money prayed for.

Jaeger in his answer admits that on or about the 10th day of September 1949, the contract set forth as exhibit 'A' in said complaint was entered into between the plaintiff and the defendant. He further avers the cattle plaintiff had to sell were not as represented and for that reason his agents refused to accept them. Continuing, Jaeger averred that certain of the cattle were sold to him through his agents 'in an entirely new deal and transaction' on September 15, 1949, which were paid for, and that he 'had no further interest in the remainder of the cattle.'

The jury were justified in finding from Wood's evidence that in August 1949 one Sirginson, as the agent of Jaeger, visited the Wood ranch in East Glacier Park, seeking to purchase cattle; that Wood and Sirginson went to the 'old Neilson place * * * to look at the cattle * * * and * * * drove from one herd of cattle to another bunch all over the pasture * * *' inspecting them; that they were 'dealing on that entire group of cattle in that field with ten percent cut,' and in connection with such cattle Sirginson visited Wood during the following week and talked 'this matter over in the hayfield * * * I told him I would consider the price and wire a night letter which I did that night accepting the offer. * * * Within a day or two at the most * * * Mr. Jaeger sent Mr. Boehler * * * up with a contract and a check for five hundred dollars.'

As set out by the trial judge in instruction No. 1 to the jury: 'This contract is as follows:

"Great Falls Livestock Commission Co.

"Box 991 Great Falls, Montana Phone 4348

"Livestock Bill of Sale and Contract

"This Agreement, Executed this 10th day of Sept. 1949, between R. D.

Wood of Glacier Station, hereinafter called 'Seller' and Melvin Jaeger

of Great Falls, hereinafter called 'Buyer.' Witnesseth: For the sum of

Five Hundred Dollars ($500), as part purchase price, in hand paid to the

Seller, the receipt of which is hereby acknowledged, said Seller hereby

sells and conveys and agrees to deliver to said Buyer, or his order, the

following described livestock, and warrants the title thereto,

                 "No Head          Description       Brands         Location     Price
                 --------          -----------       ------         --------     -----
                "Before Cut           Strs         (symbol)??         R-H        20 cents
                 better than          Hfrs
                "80 head
                "35 strs
                "45 hfrs                                                         18 1/2 cents
                                               "10 Per Cent Cut
                

to be weighed at Browning with 2 per cent shrink and delivered, scale

count guaranteed F.O.B. cars at * * * between or on 15 of Sept., 1949,

at Buyers option, or as soon thereafter as cars can be furnished by

carrier for final destination.

"All of the above stock to be free from encumbrances, including taxes

for year of delivery, and to pass federal and state inspection for interstate

shipment. Health and brand certificates to be furnished purchaser, free

of charge, on delivery. Above to be free of contagious disease and in

merchantable condition.

"Seller /s/ R. D. Wood.

"Buyer /s/ Melvin Jaeger.

"Witness: /s/ A. W. Barkler"

According to Wood the written contract referred 'to those cattle which were in the field on Sunday morning when [Wood] and Mr. Sirginson looked at them. * * * We delivered the cattle as we agreed to [the stock yards at] Browning.' Jaeger was not at Browning but his agents, Sirginson and Woolf, were there to receive the cattle. 'At first they cut their ten per cent out of the cutbacks and then started to cut these cattle again. I asked Mr. Sirginson why and he said he sold the cattle to Woolf. Q. Why did you object to cutting more than ten per cent? A. That wasn't in the contract. They bought all the cattle less the ten per cent. * * * I told them I was going to ship the rest and sue them for the difference * * *' Sirginson refused to take 'twenty-two head of heavy heifers. * * * We loaded them on cars and shipped them to the terminal market at Great Falls immediately.'

After shipping the rejected cattle to Great Falls, Wood on September 21, 1949, sent a letter to Jaeger at Great Falls, demanding an amount of money as damages equal to the difference between what Wood had received in Great Falls for the rejected cattle and what he would have received 'if you had fulfilled your contract,' plus the cost...