Wyoming Wool Marketing Ass'n v. Woodruff

• Decision Date: 05 June 1962
• Docket Number: No. 3034,3034
• Citation: 3 A.L.R.3d 802,372 P.2d 174
• Parties: WYOMING WOOL MARKETING ASSOCIATION, a Corporation, Appellant (Plaintiff below), v. William WOODRUFF and H. D. Bischoff, individually and as co-partners, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 174

372 P.2d 174

3 A.L.R.3d 802

WYOMING WOOL MARKETING ASSOCIATION, a Corporation, Appellant (Plaintiff below), v. William WOODRUFF and H. D. Bischoff, individually and as co-partners, Appellees (Defendants below).

No. 3034.

Supreme Court of Wyoming.

June 5, 1962.

James P. Horiskey (of Ellery, Hickey, Rooney & Walton), Cheyenne, for appellant.

J. D. Fitzstephens (of Goppert & Fitzstephens), Cody, for appellees.

Before BLUME, C. J., and PARKER, HARNSBERGER, JJ., and STANTON, D. J.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Wyoming Wool Marketing Association, a corporation, formerly Wyoming Cooperative Wool Marketing Association, hereinafter called the Association, sued William Woodruff and H. D. Bischoff, individually and as a partnership, for an alleged deficiency of $9,153.32 arising by reason of the difference between the moneys advanced to the partners and the net receipts from sale of their wool, together with interest thereon, and claimed to be due the Association under the terms of a marketing agreement dated June 7, 1951. By this agreement the partners, as defendants will hereinafter be designated, appointed the Association as their exclusive agent to sell all wool of their 1951 clip; agreed the Association might use the services of the National Wool Marketing Corporation to carry out its agency; authorized the National Wool Marketing Corporation to sell the wool in its own name and collect the proceeds; and consented that 'in the conclusive discretion' of the Association or the National Wool Marketing Corporation the wool might be graded, classified or commingled with similar wools of other growers. On its part, the Association agreed to sell the wool, together with wool received from other growers, through the National Wool Marketing Corporation, and to pay the partners ratably the amount received from the sale of the wool, less advances, interest thereon, transportation, handling and marketing costs, as well as certain other items not important here.

Thereafter on August 25, 1952, the parties executed a further instrument in which it is recited that the partners had delivered or would deliver on or before November 30, 1952, approximately 31,876 pounds of shorn wool, grease weight, to the Association and National Wool Marketing Corporation, the latter being referred to as the 'Handler,' and the partners certified such wool to be free of liens except that of the First National Bank of Powell, Wyoming, which, in writing, waived its lien.

The acceptance by the National Wool Marketing Corporation of any consignment of the wool does not appear.

In defense, the partners admitted the execution of the agreements of June 7, 1951, and August 25, 1952, and that the Association had advanced the partners a total of $22,313.20, pleaded the statute of limitation, and alleged that the partners were damaged by the negligence of the Association in its marketing of the wool. The trial court considered the negligence defense as a counterclaim although not designated as such.

The partners' motion for summary judgment was denied. The case was tried to a jury and in one of the instructions given, the court directed a verdict in favor of the Association for the sum of $9,153.32 with 4 per cent interest from January 26, 1953 (which sum was the amount plus interest the evidence showed was the difference between advances made to the partners less the net receipts from their wool), unless the jury found the partners were damaged by the Association's negligence, in which event the jury was told to deduct the amount of damages found from the $9,153.32, and the balance should draw interest at the rate of 4 per cent per annum from January 26, 1953. The court also instructed the jury relative to the partners' claim for damages because of alleged negligence of the Association. After the jury retired it submitted to the court the following question:

'Do we have to determine the amount of damage if decided in favor of defendants?'

The court then instructed the jury:

'If you use the form of verdict which finds generally for the defendants and against the plaintiff you are finding damages to the defendants to be $9,153.32 or more.

'If you find the damages to the defendants to be less than $9,153.32 then you should use the form of verdict where you fill in the amount of damages.

'If you find no damages to the defendants, then you should use the form of verdict which finds generally in favor of plaintiff and against defendants in the sum of $9,153.32 with interest.'

The jury returned its verdict as follows:

'We, the jury, duly impanelled and sworn to try the issues in this case, do hereby find generally in favor of the Defendants and against the Plaintiff in this case.'

Whereupon the court entered judgment accordingly.

Following entry of this judgment, the Association moved '* * * to set aside the verdict and the judgment against the Plaintiff entered thereon and to enter judgment for the Plaintiff in accordance with its motion for a directed verdict * * *', or, in the alternative, for a new trial. The court by its order denied the motion, and it is from this order that appeal is taken.

The Association contends: (1) There was insufficient evidence upon which the jury could properly find the Association negligent, (2) the jury's verdict was necessarily speculative, (3) the court erred in giving and refusing certain instructions, and (4) negligence, if any, would be imputed to defendants as well as to plaintiff.

In furtherance of the contention that there was insufficient evidence upon which the jury could properly find the Association was negligent in its disposal of the partners' wool, the Association attacks the trial court's admitting in evidence a copy of a letter written by an officer of the Association in which it is stated:

'* * * It is noteworthy that we have disposed of 80 per cent of our 1951 consignment with a top of $1.56 per pound or an over all average of $1.16 per pound net to the grower.'

The letter was objected to by the Association as being immaterial, incompetent and irrelevant, but was received over those objections.

As the partners received only approximately 45 2/3 cents per pound net, the Association's statement that the average of its sales of 1951 consignments netted growers $1.16 was certainly relevant, material and competent evidence as bearing on the issue of the Association's negligence in selling the partners' wool. Therefore, the letter's admission in evidence was not error. When the partners' wool was received by the Association on June 6, 1951, the failure of the Association to dispose of it within a reasonable time thereafter, so that it would have participated in sales which netted other consignors a much higher average price, was a circumstance which, unless explained or refuted, warranted the jury's conclusion that the Association had been negligent in its efforts to fulfill the duties of its agency respecting the partners' wool. See McCormick on Evidence, § 239, pp. 502-503.

The appellant relies a great deal upon Justice v. Brock, 21 Wyo. 281, 131 P. 38, rehearing 21 Wyo. 298, 133 P. 1070. In that case it was said at 21 Wyo. 293, 131 P. 41:

'* * * In the case before us the evidence shows that the method of selling the wool was to exhibit it to proposed buyers, and that this was done. * * *'

The court then observed:

'* * * There may have been wool of the same or higher quality sold at the market quotations, but that fact of itself would not be sufficient to entitle the defendant to recover if the factor was diligent and in good faith endeavoring to sell defendant's wool. * * *'

From the conclusion reached in Justice v. Brock, it seems clear that the court there adopted as the criterion upon which to test the alleged negligence of the factor, not whether there was a higher market value for the wool during the time when the factor had it for sale, but, whether the factor's efforts in offering it for sale to available customers were sufficient to fulfill his duty to be diligent in the grower's interest. The opinion also points out that the factor was not an insurer of sale or price; that because the grower failed to instruct the factor when to sell, it would be presumed that the grower had approved the factor's action in not selling at any particular time, and, therefore, the grower should not be heard to complain if the grower suffered loss. Insofar as these concepts apply in the instant case, we do not disagree with them.

But the distinguishing difference between the Justice case and that now before this court is that the decision in Justice turned upon whether the wool should have been sold at the market price, while here it turns upon whether diligence was shown in handling the partners' wool when the Association admitted it had sold wool consigned to it during the period from June 6, 1951, to approximately October 25, 1951, within which time it had control of the partners' wool and returned to its other consignors an average net return of $1.16 as compared to the approximate 45 2/3 cents returned to the partners. It was not the market price which measured the Association's performance of its duty, but what was actually done about the partners' wool when the Association was doing better with the wool of its other consignors.

The per curiam opinion upon petition for rehearing in Justice v. Brock, 21 Wyo. 298, 133 P. 1070, made it plain that where there was evidence tending to show lack of diligence on the part of the factor which was left unexplained, that of itself might be sufficient to justify a finding of negligence.

However, in the case now before us, we not only have the unqualified admission of the Association that some 80 per cent of all the 1951 consignments which the Association had received up to near the end of October had actually been marketed so as to bring the growers a net return of not less than $1.16 on the average, but in addition...