Wyuta Cattle Co. v. Connell

• Decision Date: 12 May 1931
• Docket Number: 1669
• Citation: 43 Wyo. 135,299 P. 279
• Parties: WYUTA CATTLE CO. v. CONNELL, ET AL
• Court: Wyoming Supreme Court

299 P. 279

43 Wyo. 135

WYUTA CATTLE CO. v. CONNELL, ET AL

No. 1669

Supreme Court of Wyoming

May 12, 1931

Rehearing Denied, September 25, 1931, Reported at: 43 Wyo 135 at 152.

APPEAL from District Court, Uinta County, JOHN R. ARNOLD, Judge.

Action by the Wyuta Cattle Company against Druisilla Connell and Lucile Tobin. From a judgment in favor of plaintiff against defendant Tobin, but dismissing the action as to defendant Connell, defendant Tobin appeals, and plaintiff moves to dismiss the appeal.

Reversed and Remanded.

For the appellant there was a brief by Lewis Jones, of Brigham, Utah B. H. Jones, of Ogden, Utah, and Samuel Corson, of Evanston, and oral argument by B. H. Jones.

The case involves a land lease contract. Plaintiff refused to accept the lease. He failed to pay rents, and declined to take possession. Thereafter plaintiff brought this suit for breach of contract. Defendant Tobin had a right to consider the option at an end when plaintiff failed to make payment. Frank v. Stratford, 77 P. 139. No action or breach can be maintained on a contract not binding on both parties. 16 R. C. L. 560. An oral contract to enter into a written contract is incomplete until the written contract is made. 16 R. C. L. 560. It would be a violation of the statute of frauds to show that the company intended to bind itself without its signature. 16 R. C. L. 589. The judgment for damages for an alleged breach of contract is unsupported by law or the evidence.

For the respondent there was a brief and oral argument by P. W. Spaulding, of Evanston, Wyoming.

Defendants agreed to lease real property of the plaintiff at an annual rental of $ 1700.00, upon which $ 50.00 was paid down. The corporate character of plaintiff was not denied. 247 P. 1049. The annual rental from the property was proven to be $ 2950.00. Points not proved, are deemed to be waived. Ins. Co. v. Lloyd, 273 P. 682. There was no evidence of any retraction or refusal to accept the lease, nor tender $ 850.00 rental. State v. Court, 267 P. 1062. This action is for breach of an agreement to make a lease. Such an agreement may be made by parol. Marshall v. Ruggs, 6 Wyo. 283, 2 C. J. 450; Mead v. Leo Sheep Co., 32 Wyo. 313, 23 P. 514. An agreement sufficiently describing the premises to identify them, and specifying terms of rental payment is sufficient. Mead v. Sheep Co., supra, 35 C. J. 1202-1206. The agreement sued upon met these requirements. 31 Wyo. 314, 26 Wyo. 314. The agreement contained the unusual covenant requiring lessee to prevent the use of old roads through the premises, the validity of which had been established in the case of Hatch v. Black, 25 Wyo. 416. The evidence shows a breach of an agreement. Peterson v. Larquer, 257 P. 875; Moses v. Autono, 20 L. R. A. (N. S.) 354; Oldfield v. Brewing Co., 113 P. 630; Ingersley v. Goodman, (Ore.) 240 P. 877, 35 C. J. 1209. The measure of damages is governed by the value of the bargain. Driggs v. Dwight, (N. Y.) 31 Am. Decs. 284; Hall v. Horton, 44 N.Y. 569, 16 R. C. L. 557; Finance Corp. v. Credit Co., 283 P. 1103. The agency of Connell in acting for Tobin was clearly established. Lindquist v. Dickson, (Minn.) 107 N.W. 958; Marshall v. Ruggs, 6 Wyo. 279; Weisner v. Hasbrouck, 34 Wyo. 61; Farmers Bank v. Haun, 30 Wyo. 322. Plaintiff used every reasonable effort to secure the lease. Loss of profits must be the natural and approximate result of the breach complained of. 17 C. J. 788, 1017, 1027; Mackey v. Boswell, 162 P. 193; Gibson v. Hercules, etc., 252 P. 785, 36 C. J. 696; Williams v. Gardner, 213 S.W. 981. Where there is an agreement found upon a consideration, it is not invalid, for want of mutuality because one party has an option while the other has not. 13 Cyc. 336.

Lewis Jones, B. H. Jones and Samuel Corson, in reply.

There was no compliance by the plaintiff with the terms of the option. Frank v. Handcock, 77 P. 135. A lease for a term exceeding three years is a conveyance. 4579 C. S. Connell was not the lawful agent of Tobin, and had no authority to sign her name. There was no breach of the option agreement by Tobin. A tender of $ 850.00 rental payment was vital. Frank v. Handcock, (Wyo.) 77 P. 135. Peterson v. Larquer cited by respondent is not in point on the facts.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This case has been brought here by direct appeal to review a judgment of the District Court of Uinta County, in favor of Wyuta Cattle Company, a corporation, plaintiff in that court, and against Lucile Tobin, one of the defendants there. The litigation arose out of substantially the following set of facts:

During the month of March, 1928, and thereafter, Drusilla Connell and her daughter Lucile Tobin were the owners of certain lands situated in Uinta County, Wyoming, all of which appear to be designated in the record before us as the "Connell" ranch. The daughter resided in Tracy, California, while the mother lived on the ranch in Wyoming. On or about March 16, 1928, pursuant to a newspaper advertisement, Thomas Saxton, the manager of Wyuta Cattle Company, consulted with Mrs. Connell regarding the leasing of this ranch property to his company. The result of this conversation was the signature by Mrs. Connell of the following typewritten memorandum:

"Evanston, Wyoming, March 16th, 1928

RECEIVED from Youta Cattle Company

___ Fifty & 00/100 ___ Dollars for option on lease to be given said Company on April 1st, 1928, on all Ranch Property on Bear River owned by Lucile Tobin; said lease to be for a rental of $ 1700.00 per year for a period of six years, half of one years rent to be paid April 1st, 1928, and half of years rental September, 1928, except second half year payment which will be paid July 15, 1928.

Lucile Tobin

$ 50.00 By Mrs. M. B. Connell

Her Agent."

This was delivered to Saxton, who gave Mrs. Connell a company check for $ 50 payable to her order, which she cashed. Thereafter Mrs. Connell directed the preparation of a form of lease, which was sent to her daughter in California for the latter's signature and acknowledgment, thereby undertaking to comply with the agreement embodied in the written memorandum. The lease form was signed by the daughter and returned to the mother, who, about April 18, 1928, submitted it to the officials of the Wyuta Cattle Company. This lease form purported to run for three years only and contained several covenants to which objection was made by the proposed lessee. In an effort to reach an agreement relative to the lease covenants which would be satisfactory to all parties concerned, the representatives of the Wyuta Cattle Company and Mrs. Connell subsequently had an extended conference, after which Dr. Solier, the president of the corporation, himself drew up another form of lease, also for the term of three years, and with covenants therein varying in some respects from those contained in the lease form Mrs. Tobin had executed and to which objection had been made, as aforesaid. This instrument was then--the record is not clear on the matter--either sent to Mrs. Tobin in California by Dr. Solier, or was turned over to Mrs. Connell to send. The testimony in the record for the plaintiff is that Mrs. Connell expressed her satisfaction with the lease form thus prepared. Mrs. Connell, however, says that she told the Wyuta Cattle Company's officers that: "Well it is all right if my daughter wants to sign it that way." However these matters may be, the next day Mrs. Connell advised the officers of the company that she had called up her daughter over the long distance phone and Mrs. Tobin had said that she would not sign any more leases. Thereupon the corporation, by its manager, sent a wire to Mrs. Tobin inquiring as to whether her mother was her authorized agent in the transaction, and insisting on the signature of the lease "as executed." Mrs. Tobin made no response to this inquiry and nothing more was done in the matter until February 25, 1929, when this litigation was commenced by the Wyuta Cattle Company.

The action instituted by the plaintiff was one for damages for breach of the agreement to give a lease as described in the memorandum hereinabove quoted, and was brought against both Drusilla Connell and Lucile Tobin, as defendants, the petition alleging:

"That on March 16th, 1928, defendant Lucile Tobin was, ever since has been and now is the owner of lands situate in the County of Uinta, State of Wyoming, known and described as all section fifteen and all section seventeen and all section twenty and all section twenty one except the lot four thereof and except the northeast quarter southeast quarter thereof, all situate in township twelve north, of range one hundred nineteen west of the sixth principal meridian. That on said date the defendants Lucile Tobin and Drusilla Connell were, ever since have been and now are the owners jointly of said northeast quarter of the southeast quarter of said section twenty one. And that on said date defendant Drusilla Connell was the lessee from the State of Wyoming, by its State School Land Board, for all section sixteen in said township and range which lease is for a term to expire January 15, 1931."

It was also alleged that the defendant Lucile Tobin "promised and agreed in writing to lease" all the aforesaid premises to the plaintiff pursuant to the written memorandum aforesaid, which was set forth in the pleading verbatim.

The defendants filed separate answers, in form general denials but admitting that "application was made for a lease of the premises in dispute," and alleging, "upon information and belief, that Lucile Tobin, one of the defendants herein, made and executed and delivered or offered to deliver a lease to the plaintiff and that the said pl...