124 P. 335 | Utah | 1912
Appellant brought this action to recover for services rendered upon an alleged commission contract entered into between him and the respondent corporation. x\fter alleging the corporate capacity and place of business of respondent, and that it was engaged in the business of buying and shipping live stock, paragraph three of the complaint reads as follows:
“(3) That between the 1st day of August, 1908, and the 1st day of January, 1909, the defendant employed said plaintiff as such broker to investigate and report the conditions, price, quality, and amount of the cattle market throughout the State of "Utah and elsewhere, with a view to future purchase of such stock by the defendant, and then and there agreed to' pay this plaintiff the sum of fifty cents per head for all cattle which would be quoted by said plaintiff to said defendant and purchased by it as the result of such, investigation and quotation by said plaintiff; that in pursuance thereof the said plaintiff investigated the said market, as aforesaid, and quoted to said defendant the condition, price, quality, and amount of 3000 head of cattle at Logan, Utah, belonging to one Hansen, all of which were accepted by said defendant and purchase of said cattle made by it pursuant to the terms and conditions aforesaid, and that said defendant then and there became indebted to this plaintiff in the sum of $1500, no part of which has been paid; and that the entire sum thereof is now due and owing from said defendant to the plaintiff.”
Appellant also alleged a demand for payment of the amount -claimed in said paragraph, and' refusal to pay, and prayed judgment for $1500 and costs.
Bespondent filed its answer to the complaint, in which it, in effect, denied all of the allegations we have set forth, and in substance averred that whatever services appellant had
Upon the foregoing issues, a trial to a jury resulted in a verdict for respondent. The court entered judgment upon said verdict, from which this appeal is prosecuted.
The errors assigned are : (1) That the court erred in its charge to the jury; (2) in refusing to give the jury further information asked for by them after they had retired to deliberate upon their verdict; and (3) because the verdict is not' supported by any evidence, and hence the judgment has no support in law.
At the trial, appellant produced evidence which tended to establish the following facts: That prior to the commencement of the action he had been acquainted with respondent for about twelve years; that during that time he had bought cattle or live stock on commission for the respondent in the State of Utah and elsewhere; that in July, 1908, he went to San Francisco, where respondent’s principal place of business Avas located, and while there he saw Mr. Hough (who, it seems, was the general manager of respondent), for the purpose of making arrangements to work for respondent for a salary, instead of on thé commission basis of fifty cents per head for cattle purchased, as he had theretofore been doing; that Mr. Hough said that he -would talk the matter over with Mr. Swift, the president of the respondent, and would notify appellant later. From the printed abstract, it appears that appellant testified further as follows. “We talked further about my investigating the stock market here, keeping in touch Avith it, and advising them of the condition of the market and the cattle in this country. I told Mr. Hough I would keep him posted on the cattle market here; the number of cattle, location, freight rates, and prices, and he said
Pursuant to the foregoing arrangement, appellant wrote respondent, under date of July 21, 1908, and again on the 18th day of August following, giving it information with regard to his ability to buy certain beef cattle and mutton sheep, quoting prices. -Respondent replied to the letters, informing appellant that it could not then handle or use any of the “stock” referred to by him; but “we will be pleased to take the matter up with you — pertaining to further purchases.” After this letters were exchanged between appellant and respondent at intervals, in which appellant kept respondent informed of the live stock situation in his territory. It could subserve no useful purpose to refer to the correspondence in detail. It must therefore suffice for us to say that during the fall of 1908 appellant notified respondent of the 3000 head of Hansen cattle and quoted prices for which they could be bought, and which cattle respondent
After appellant had rested, respondent’s counsel interposed a motion for nonsuit: (1) Because there was no evidence to sustain the allegations of the complaint “that between the 1st day of August, 1908, and the 1st day of January, 1909, the defendant employed said plaintiff,” etc.; and (2) because there is a material variance between, the allegations and the proof, in that the proof shows that- appellant’s alleged contract, under which he claims, was made, if made at all, some time before the time he alleged it was made. The court overruled the motion for nonsuit, and respondent’s counsel then moved for a continuance of the case upon the ground of surprise. The latter motion was based upon the ground that appellant in his complaint alleges “that his contract was made with the defendant between the 1st day of August, 1908, and the 1st day of January, 1909,” while the evidence shows it “was made in San Francisco with the general manager of the company, not between the dates specified in the complaint, but during the month of July, 1908.” This motion was denied. Respondent then proceeded with the case by producing evidence which tended to support the aver-ments of its answer.
The court, upon appellant’s theory of the case, charged the jury as follows: “(4) If you find from the evidence that the defendant employed the plaintiff as a broker to investigate the cattle mlarket, as alleged in the complaint, and to report its condition to said defendant, and that the defendant then and there agreed to pay the plaintiff the sum of fifty cents per head' for all cattle so quoted by him to said defendant and purchased by it as the result of such investigation and quotation by said plaintiff, and that as a result thereof, and in pursuance thereof, said plaintiff investigated said cattle market and reported the same to said defendant, and that the defendant acting thereon purchased from one Hansen 3000 head of cattle at Logan, Utah, and that said cattle were included in the investigation and report of said plaintiff to said defendant, then I charge you that your
Upon respondent’s request, the court charged the jury in instruction No. 8 as follows: “(8) You a/re instructed that before you can find the issues in favor of the plaintiff and against the defendant you must be satisfied by a preponderance of the evidence that between August 1, 1908, and January 1, 1909, the defendant employed the plaintiff, as alleged in paragraph three of the complaint, and agreed' to pay him the sum of fifty cents per head for all cattle quoted by the plaintiff to the defendant and purchased by the defendant as a result of such quotation, and, unless the plaintiff has established such employment, as alleged by him, to your satisfaction by a preponderance of the evidence, your verdict must be in favor of the defendant.”
These two instructions illustrate the different theories of the respective parties with respect to the allegations contained in paragraph three of the coinplaint. Appellant excepted to the italicized portion of the latter instruction* and now insists that the court erred in limiting the right to recover as stated therein. In connection with the foregoing, it is also important to consider the following proceedings: After the jury had retired to deliberate upon their verdict, and after having been in consultation for about three hours, they, aibout midnight, returned into court, and, pursuant to Comp. Laws 1907, sec. 3156, asked the court for further information. The following proceedings then took place: “Juror Barker: We want the information in regard to your charge to the jury there whether our decision depends entirely on your charge in reference to paragraph three of the complaint, I understand it, whether our decision depends entirely on you'r charge to the jury in regard to paragraph three of the complaint, wherein the complaint states than there was an agreement made at a certain time between the defendant and the company in this case. Do you understand me? The Court: Well, gentlemen, the only thing that I can say to you is the court has instructed you as to
Keeping in mind the entire proceedings which we have outlined above, it is clear to our minds that, in view of the court’s rulings on the admission of appellant’s evidence with regard to the contract of employment, the overruling of the motion for a nonsuit and denying the motion for a continuance, appellant’s counsel may have been misled, and thus-made no effort to amend his complaint to conform to the proof, or to the court’s views as expressed in instruction No. 8. The court must have considered the allegations respecting the time when the alleged contract was made as immaterial, when he ruled on the admission of evidence and the motion for a continuance on the ground of variance, for the reason we have given. Had the court then indicated that
Appellant’s counsel has cited a large number of cases wherein it is held that, under circumstances like those present in this case, time is not of the essence and is not a material or controlling factor in the case. It is not necessary for us to refer to the numerous cases, since the law is elementary that an allegation of time, under the circumstances of this case, is not controlling, and the party responsible for such an allegation is not bound to prove it literally,
But, say counsel for respondent, the appellant cannot complain, because instruction No. 4, which we have herein given in full, is precisely to the same effect as instruction No. 8, which was given at the request of respondent,
Appellant’s contention that there is no evidence to support the verdict, and that the judgment, for that reason, must fail, is not tenable. We need not discuss the evidence, except to say that there is sufficient evidence, if the jury believed it to be true, to sustain a verdict for the respondent.
From what has been said, it necessarily follows that the judgmemt cannot be permitted to stand. The judgment therefore is reversed, and the cause is remanded to the district court of Weber County, with directions to set aside the