Yellowstone Sheep Co. v. Diamond Dot Live Stock Co., 1661

• Decision Date: 31 March 1931
• Docket Number: 1661
• Citation: 297 P. 1107,43 Wyo. 15
• Parties: YELLOWSTONE SHEEP CO. v. DIAMOND DOT LIVE STOCK CO
• Court: Wyoming Supreme Court

297 P. 1107

43 Wyo. 15

YELLOWSTONE SHEEP CO. v. DIAMOND DOT LIVE STOCK CO

No. 1661

Supreme Court of Wyoming

March 31, 1931

ERROR to District Court, Fremont County; EDGAR H. FOURT, Judge.

Action by the Diamond Dot Livestock Company, commonly known as the Diamond Dot Sheep Company, against the Yellowstone Sheep Company. Judgment for plaintiff, and defendant brings error.

Modified and Affirmed.

For plaintiff in error there was a brief by Brimmer & Brimmer, of Rawlins, and P. B. Coolidge, of Lander, Wyoming, and oral argument by Clarence A. Brimmer.

The court erred in denying defendant's motion to make more definite and certain, and to strike portions of plaintiff's petition relating to oral representations and understandings, contradicting the terms of the written contract. Artwein, et al. v. Link, 195 P. 877; Stone v. Barr, (Kan.) 208 P. 624; Assn. v Feltman, (Idaho) 175 P. 583; Ia. Company v. Coal Co., (Ia.) 210 N.W. 440; Roberts v. Investors' Sav. Co., (Ga.) 113 S.E. 398; Jones v. Jones (Ga.) 75 S.E. 1129; Bibb Co. v. Mfg. Co., (Ga.) 82 S.E. 642. The court erred in overruling defendant's objections to evidence tending to vary the terms of the written contract relating to purchase of sheep. Jones Ev 543, et seq. McKelvey Ev. 451-454, 6 R. C. L. 839-842, 22 C. J. 1114; Power Co. v. Clark, 31 Wyo. 284; Bushnell v. Elkins, 34 Wyo. 495; Dunn v. Gilbert, 36 Wyo. 249; Valentine v. Shepherd, (Ariz.) 168 P. 643; Remsberg v. Co., 163 P. 792; Brown v. Holloway, (Colo.) 108 P. 25; Ashbury v. Milling Co., (Wash.) 242 P. 362; Ass'n v. Bowerman, (Wis.) 224 N.W. 729; 4 Page on Contracts, 2190; Light v. Grant, (W. Va.) 51 L. R. A. (N. S.) 792; Co. v. Castlen, (Ga.) 37 S.E. 485; Johnson v. Pierce, 16 O. S. 472; Mead v. Peabody, (Ill.) 55 N.E. 719. The court erred in denying the defendant's motion to strike evidence of prior negotiations, tending to vary the written contract. 2 Bancroft's P. & R. 1844. The market value of sheep in a sale contract must be determined as of the time of a breach thereof, in computing damages. 6 Page Conts. 3221. The court erred in rejecting evidence as to the manner in which defendant handled its sheep, and of its contracts for the handling thereof. The court also erred in refusing defendant permission to amend its answer to conform to the evidence and proof introduced at the trial. Lellman v. Mills, 15 Wyo. 149; Bissenger & Co. v. Weiss, 27 Wyo. 262. The court erred in allowing interest on unliquidated damages. Kuhn v. McKay, 7 Wyo. 42; City of Rawlins v. Murphy, 19 Wyo. 238, 253; Wyo. Cen. Irr. Co. v. La Porte, 26 Wyo. 249. The judgment of the court was contrary to the evidence and contrary to law. The court erred in assessing the amount of recovery.

For defendant in error there was a brief by Hagens & Murane, of Casper, and W. E. Hardin, of Lander, and oral argument by Mr. Hagens.

A judgment based on substantial evidence will not be disturbed on appeal. Stahley Co. v. Beckstead, 27 Wyo. 173; Wheaton v. Rampacker, 3 Wyo. 441; Worland v. Davis, 31 Wyo. 108; Edwards v. Murray, 5 Wyo. 153. The judgment in this case is supported by substantial evidence. The contract in question is ambiguous, and the court did not err in refusing to strike portions of plaintiff's petition relating to construction of the contract. 3 Jones Ev. 450-453, 22 C. J., Sec. 1530-1531, 1677-1683, 1690. J. W. Denio Co. v. Malin, 25 Wyo. 143; Sponberg v. Bank, 99 P. 712; Claffey v. Ins. Co., 8 P. 711; Marshall v. Gridley, 46 Ill. 247; Clark v. Crawfordsville Coffin Co., 25 N.E. 288; 1 Greenleaf on Ev. 277; Buford v. Lonergan, (Utah) 22 P. 164, 17 Cyc. 741; Nor. Am. Transportation Co. v. Samuels, 146 F. 48; DePue v. McIntosh, (S. D.) 127 N.W. 532; 4 Page on Conts. 2189; Dorris v. King, (Ky.) 54 S.W. 683; Moore v. Paving Co., (Ala.) 23 So. 798; United Railways Co. v. Wehr & Co., (Md.) 63 A. 475; Vogel v. Weissman, 51 N.Y.S. 173; Buckbee v. Co., 224 F. 14; Mills v. Jackson, (Cal.) 127 P. 625; Brackett & Co. v. Co., (Ga.) 56 S.E. 762; Miller v. Supply Co., (Mich.) 114 N.W. 61; Watson v. Lamb, (Ohio) 79 N.E. 1075; Edwards v. Co., (Wis.) 102 N.W. 575; Haller v. Parrott, (Ia.) 47 N.W. 997. The cases cited by defendant are readily distinguishable from the case at bar, in that they do not involve ambiguous contracts, but contracts complete in themselves. The case of Valentine v. Shepherd, (Ariz.) 168 P. 643 is a fair illustration of a violation of the rule against receiving oral evidence, where a written contract is complete in itself. Also Demple v. Carroll, 21 Wyo. 455; and Power Co. v. Clark, 31 Wyo. 284. See also Bushnell v. Elkins, 35 Wyo. 495; Dunn v. Gilber, 36 Wyo. 249. Defendant breached a contract for the sale of sheep and plaintiff was entitled to damages proved. The court received evidence of the value of the sheep contracted for, for the purpose of arriving at the amount of damages. The evidence as to value was competent and was properly received. The court properly allowed interest. Kuhn v. McKay, 7 Wyo. 42; Rawlins v. Murphy, 19 Wyo. 238. The authorities do not recognize any arbitrary geographical limits in fixing the value of livestock value, if the controlling market is shown. 22 C. J. 189, 16 Cyc. 1144, 2 Jones Com. Ev. 956-957.

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

OPINION

RINER, Justice.

These proceedings in error are here for the purpose of obtaining review of a judgment of the District Court of Fremont County entered in an action instituted in that court by the Diamond Dot Live Stock Company, commonly known as the Diamond Dot Sheep Company, the defendant in error, against the plaintiff in error Yellowstone Sheep Company. Hereinafter the parties will be referred to either as plaintiff and defendant or by their respective corporate names.

The litigation arose in consequence of an alleged failure on the part of the defendant to deliver to plaintiff certain sheep pursuant to the terms of a written contract executed by the parties through their respective agents on March 26, 1927. The claim of plaintiff, under its pleadings, was in substance for money asserted to have been overpaid to defendant in the course of the transaction, and also for damages inflicted by the defendant upon the plaintiff because of the former's non-delivery of a portion of the sheep specified by the contract aforesaid. The gist of the defendant's answer to this demand was, that no such overpayment had been made; that it delivered part of the sheep called for by the terms of the contract which were duly received and accepted by the plaintiff in part performance thereof, and thereafter that it tendered to plaintiff the balance of the animals in full accord with said contract, which tender was refused by plaintiff. The cause was tried by the court without a jury, with the result that the judgment complained of was given, finding generally in plaintiff's favor.

So far as necessary to due understanding of the errors alleged and urged to procure a reversal of the judgment, the evidence in the case was to the following effect: The plaintiff, acting through its vice president C. D. Zimmerman, had, prior to March 26, 1927, directed one R. B. Minty--engaged in the live stock commission business--to purchase on its account some old ewe sheep. On the date last mentioned, Minty met a Mr. John Rachou, the general manager of the defendant, in a hotel in the city of Casper, Wyoming. According to Minty's version of what then occurred, Rachou, representing the defendant, stated that he had some old ewes for sale, and during the ensuing conversation with Minty gave the latter a description of them. Minty then called up Zimmerman over the long distance phone at Douglas and told him "what these ewes were represented to be by Mr. Rachou," and received instructions to purchase them for the plaintiff. Accordingly, a written contract was prepared in triplicate for the sale of the sheep, on a printed form used by Minty in his business, each party retaining a signed copy thereof.

No question is made here as to the form or execution of this agreement, which reads:

"This contract, made this 26 day of March A. D., 1927, between Yellowstone Sheep Co. of Riverton, Wyo., party of the first and Diamond Dot Sheep Co., Douglas, Wyo., party of the second part.

"WITNESSETH: That for and in consideration of the sum of 3000.00 DOLLARS paid by said party of the second part to said party of the first part, in hand paid, said sum being a part of the purchase price, the receipt whereof is hereby acknowledged, said party of the first part hereby sells and agrees to deliver to said party of second part or their assigns, 3000 (no est.) old ewes, to be all the old ewes from entire outfit--with all sick, ruptured, crippled--sick sheep out unshorn; and against which there is no Lien or Encumbrances, title being clear; and now ranging at Fremont Co., between the 10 day of Sept. and the 20 day of Sept. A. D. 1927, at party of the second part's option, F. O. B. cars when railroad accepts shipments for final destination, weighing and inspection fees paid at Hudson, Wyo. on N.W. railroad. Party of first part to order cars for above sheep. Said sheep to be lotted in dry pens over night off feed and water, and to be weighed with dry fleeces; to be in good merchantable condition, to be free from scab and all other diseases; and to pass both State and Government inspection.

"Lambs guaranteed to average at least ___ pounds at the price of ___ All lambs under ___ pounds rejected. Ewes (shells thrown out) at the price of $ 6.50 head subject to conditions above.

"Party of the first part further agrees not to otherwise dispose of any sheep, mentioned in above sale, and said sale covers all of this particular class of sheep owned by party of the first part unless otherwise stated.

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