84 P. 895 | Wyo. | 1906
Plaintiff in error who was defendant below and who will hereafter be referred to as the defendant, seeks to reverse a judgment obtained against him by the defendant in error, who was the plaintiff below and who will be referred to as the plaintiff, in the District Court of Albany County for the amount claimed to be due upon two certain promissory notes.
In 1896 the plaintiff, Coble, applied to the defendant, Bosler, for a loan, and as a basis of credit therefor furnished the defendant with a statement of the financial condition of the Iron Mountain Ranch Company, and of which company Coble was a stockholder. This company was a corporation organized under the laws of the State of Nebraska with a capital stock of three hundred shares of the par value of one hundred dollars each, and doing business at or in the vicinity of Iron Mountain, Wyoming. One hundred and fifty shares were owned by Coble and a like number of shares were owned by one W. E. Lawrence. The object and purpose of
In 1903 defendant purchased plaintiff’s interest in the co-partnership, and also his stock in the corporation, and in payment therefor gave his promissory notes to plaintiff in the sum of twenty-five thousand dollars and in addition cancelled all indebtedness owing to him or to the company by plaintiff. Ten thousand dollars was paid upon these notes, and upon failure and refusal to pay the balance and interest, this action was instituted. The execution and delivery of the notes was admitted, but payment contested upon the grounds: First, it was alleged that the notes were by the terms of the written contract of sale to be paid out of the proceeds of the sale of the cattle; and second, by way of counter-claim for damages by reason of alleged false representations as an inducement and upon which the defendant claims he relied in making the contract, and also for damages for an alleged breach of the contract.
The case was tried to a jury and a verdict for the full amount claimed on the notes and interest returned for the plaintiff. It is conceded that there is sufficient evidence to sustain the verdict, and if the rulings of the court, on matters hereinafter considered, are correct or were not prejudicial to defendant the judgment must stand.
1. The court sustained in part and denied in part defendant’s motion to strike out alleged new matter contained in the reply and answer of plaintiff.
So much of the order as is material for our consideration is as follows: “And the court having- heard the argument of counsel and being fully advised, it is now ordered that the said motion be sustained, and that the following matters contained in the reply and answer of the plaintiff be stricken out in so far as the same may be ground for affirmative re
2, At the time of the execution of the notes a contract was entered into between the parties, so much of which as is germane to the issue is as follows: “Now, therefore,
It is urged and contended by the defendant that the $25,000 evidenced by the promissory notes was to be paid out of the net proceeds of the cattle after he had paid to himself the sum of $214,925.00 and interest. A careful reading- of the contract does not bear out his contention. Indeed, more apt words could not be chosen to express what was in the minds of the parties at the time. The payment by notes obligatory was an absolute payment, and the excess over and above the amount reserved to Bosler and the amount of these notes for which and at prices the prop
The construction of this contract, its terms being clear and there being no ambiguity upon its face, was one of law, and therefore for the court. No evidence of conditions existing at the time of its execution could make its meaning-clearer than the words used in the contract by the parties to express their intention.
In Balch v. Arnold, 9 Wyo., 27, this court among other things says: “And the object of such construction must be to ascertain the intention of the parties; first, b}r an inspection of the deed itself, not only so far as would enable the trial court to inform itself of the language employed, but also to ascertain if upon the face of the original instrument anything appeared which would serve to illustrate such intention ; and second, by hearing any competent evidence which might be offered tending to inform the trial court of the situation of the parties at the time the instrument was executed as further illustrating the intention of the parties at the time.” In Thompson v. Wheatland Mer. Co., 10 Wyo., 86, it was in doubt on the face of the contract as to whether certain payments should be made out of a particular fund and this court held that it was proper not merely to consider the language of the contract, hut also to consider evidence of the circumstances of the parties, the situation of the properties, and other facts tending to explain the sense in which the language of the contract was used. These two cases refer to the adopted and approved method of construing a contract which by its terms is ambiguous or its meaning not clear. Where, however, the contract is not ambiguous, its meaning apparent and the intention of the parties clearly expressed, it is error to resort to proof of collateral facts and surrounding circumstances which would only serve to affirm that already expressed or give it a different meaning by parol testimony. The trial court properly refused to submit the question of the construction of this contract to the jury.
4. The defendant sought to recover damages for an alleged breach of the contract in this, that plaintiff had failed and refused to transfer titled and leased land which he held as trustee for the corporation to defendant as trustee for the same purpose, and which he had obligated himself to do. Plaintiff during the trial produced the conveyances and tendered them in open court and held himself in readiness thenceforth to deliver them to the defendant. No objection was made to the form, sufficiency or manner of execution of these transfers, but it is claimed that some of the leases for state lands had expired- during- the time which had elapsed since the execution of the contract. The evidence shows that the possession and occupancy of these lands by the corporation was continuous after, as it had been before, the sale, and that such possession, use and occupancy was in no wise disturbed. The failure b)1' plaintiff to assign the leases did not interfere with or prevent the corporation from applying for and obtaining a renewal of the leases, something which the company would have to do if it desired to continue the use and occupancy of the lands as lessee, either under a lease to a trustee in its favor or to itself. At most the damage under the facts shown for this breach of the contract could be but nominal, and as such did not constitute a counter-claim or set-off to. plaintiff's cause of action.
5. A great many letters between the parties, extending •over many years, were introduced in evidence. When the
In an action for false representations am»- evidence is competent which proves or tends to prove the existence of any inducement to rely upon them. In this case one of the inducements as testified to by the defendant was that he had confidence in the plaintiff. These letters in their entirety, though not so offered, showed the confidential personal and business relations existing between the parties, which was proper for the jury to consider in determining whether the plaintiff relied upon the parts of the letters which were offered and also competent as corroborative of defendant’s testimony that he had relied upon the alleged false representations by reason of the confidence he had in the plain-' tiff at the time they were made. It is urged in the argument that the jury were wearied and worn out from listening to the reading of them. The record does not show that the defendant at any time called this matter to the attention of the court, which he might have done after a reasonable number had been read, and thus have relieved the jury from listening to a mass of testimony cumulative in character and which would only tend to encumber the record. The ruling of the court does not appear to have been prejudicial to the defendant.
In his second defense and counter-claim the defendant does not question the execution of the notes nor the consideration for which they were given. He does not seek to cancel the notes and the contract of sale for the alleged fraud practiced upon him, but he affirms the contract which he claims he was induced to make by the alleged false representations. It was also alleged that although plaintiff so represented he was not in truth and in fact a person of much skill and good judgment in the kinds of business carried on by the corporation and firm; was not giving and did not give continuous and effective or skillful personal attention to the management of said business; that the numbers and values of the live stock decreased under the management of plaintiff at a rapid rate; that the care, skill and attention employed by the plaintiff in the management of and care of the live stock were not such that the. losses were small, but were such as to aggravate and cause more than' usual and average losses and which were greater than those of other herds in neighboring- regions. It is also alleged that from time to time plaintiff reported to defendant the conditions of the range, stock and losses and that defendant who kept the books and records made accurate entries thereof and that from the records so made from such reports it appeared that on the 20th day of April, 1903, the corporation owned and had upon its ranches and range 2,395 head, and the firm owned and had upon the same ranches and range 3,840 head, making- a total of 6,435 head of cattle after deducting the number sold and five per cent loss for each year which the plaintiff had represented in his reports as excessive. It is also alleged that at the time of executing the notes and contract of sale, and for the purpose of inducing the defendant to make the purchase, the plaintiff represented to the defendant that the records
7. The defendant assigns as error the denial of his motion for a new trial on the ground of newly discovered evidence material for him and which he could not with rea
1. The defendant claims that, he could prove upon a new trial by one Lawrence, who at the time owned a one-quarter interest in, and who kept the books of, the Iron Mountain Ranch Company, that in 1896 under the instructions of the plaintiff he kept an extra and false record which showed the number of cattle owned by the company as 1,937, whereas b)1, the true record there were not to exceed 1,500 head. It was at this time and as claimed upon the showing of the false statement that plaintiff obtained the loan of ten thousand dollars from defendant. Defendant did not purchase any interest in the corporation until 1898 and both he and plaintiff testify that before he made such purchase the corrected number was given by plaintiff, viz: 1,500. We do not consider this evidence material upon the issue as to whether the sale of plaintiff's interest which took place April 20, 1903, was or was not fraudulent.
2. Upon the showing made the defendant was not deprived of the evidence of one Swank as to what it is claimed plaintiff said at the ranch on April 18, 1903, as to the pending sale except by reason of his own failure to exercise reasonable diligence to obtain the same. He knew this person was at the ranch at the time the negotiations were pending, and plaintiff’s counter affidavit which is undisputed shows that defendant was much in the company of the proposed witness before and during the time of the trial.
3. It was proposed in opposition to the evidence of plaintiff to show by Messrs. Burke & Clark that the plaintiff never transferred or assigned the land scrip or scrip land held by him for the Iron Mountain Ranch Company to them or either of them. As to the understanding of plaintiff as to what constitutes an assignment of the scrip or scrip lands or whether in fact he did so or not is immaterial in view of what we have already stated on that branch of the case.
No prejudicial error appearing in the record the judgment will be affirmed. Affirmed.