181 P. 587 | Utah | 1919
Lead Opinion
Three causes of action are stated in the complaint. During the trial the third cause was dismissed, and that will not be further considered. The only dispute respecting the second cause of action is that defendant pleads payment. The whole controversy is therefore concerned with the first cause of action.
Plaintiff alleges an oral contract between himself and the defendant made on or about the 15th day of January, 1917, by which the plaintiff undertook to purchase certain cattle for the defendant and to hold the same until about the twentieth day of February that year at which time.they were to be
The answer denied the allegations of the complaint, except as admitted by the affirmative statements. As an additional defense it is alleged that a written contract was made between the plaintiff and defendant on the twelfth day of March, 1917, in which defendant agreed to purchase and the plaintiff agreed to sell to defendant certain cattle therein described, which were to be delivered about April first of that year; that it was stipulated in that agreement1 that the defendant would pay a feed bill of nine cents per head per day;
By reply plaintiff admitted the payment of the sums mentioned in the answer, but denied all of the other allegations.
Trial was had to the court and a jury, and resulted in a verdict in favor of plaintiff on the first and second causes of action. From that judgment defendant appeals.
Numerous assignments of error are made respecting the introduction of testimony, refusal of the court to sustain the defendant’s motion for á nonsuit, and certain instructions given and others refused.
It appears from the record that both plaintiff and defendant are and have been for a number of years engaged in buying and selling live stock; that prior to the transaction in question the plaintiff purchased cattle for defendant' and for a firm known as Iieiner Bros., of Salt Lake City, of which firm the defendant was a member. In addition to the particular cattle involved in this action, it is in evidence that during the same period two or three other bunches of cattle were purchased by the plaintiff as the agent or on behalf of the defendant. Respecting these particular cattle the testimony shows that the defendant was present and went with the plaintiff to examine them at the time the purchase was made. They are not involved here, and they are only material as it appears that at the final delivery of the cattle on April ninth and
“Bill of Sale for Cattle. Duplicate.
❖ # % # ❖ * *
“This is to certify that W. W. Davis, of Spanish Fork, has this day, March 12, 1917, bargained and sold to Geo. A. Heiner, of Ogden, the following described live stock, and does hereby guarantee the title thereto, viz.:
No. Head. Description. Brands. Location Price per
of Brands. Head.
“About 150 head of cows at $46 per head,
“About 125 head of 2 year olds at $42 per head.
“About 60 head of 1 year olds at $32 per head,
to be delivered April 1, 1917, feed bill excepted, at 9 cents a day per head.
“Received in part payment for above-mentioned stock $5,000.
Wm. W. Davis.”
It is admitted that the stock mentioned in this memorandum or bill of sale includes at least part of the cattle delivered to defendant on April tenth. It is the contention of appellant that this written agreement was the consummation of all prior oral agreements had between the parties. It is also his contention (and defendant so testified at the trial) that no subsequent change or amendment was made to that agreement; that the cattle inspected and received by him were delivered pursuant to the same; that payments were made upon the basis provided therein; and that he had fully paid the plaintiff all amounts due for the stock so delivered and accepted. On the other hand, it is the contention of respondent, and the case was apparently tried upon that theory, that at most this writing contained only a partial statement of the arrangements between the parties; that it was a mere memorandum or receipt given at that time for the payment of the amount mentioned therein which was to be applied on the cattle al
Practically all objections to the introduction of testimony on tbe part of tbe defendant were based upon the contention that this agreement of March twelfth was a merger of all previous dealings respecting the cattle in question, and for tbat reason any oral testimony concerning the conversations bad between tbe parties was immaterial and incompetent as tending to vary or contradict tbe terms of a written agreement. Defendant invokes the elementary rule that, when parties reduce an agreement or contract to writing, all prior negotiations respecting tbe matter contained within tbe writing become merged therein, and tbe writing, in tbe absence of uncertainty or ambiguity in' tbe language, or fraud on the part of either party, is binding, and oral testimony will not be beard to explain, vary, or contradict the terms of such writing.
In this case tbe allegations of tbe complaint are, and tbe plaintiff’s testimony supports the allegations, tbat a contract was made between tbe parties in January whereby tbe plaintiff undertook to buy for defendant certain cattle at not to exceed tbe price stated, and was to receive as compensation for his services one dollar per bead for tbe cattle purchased. Tbe bill of sale or writing in question is a sale or an agreement to sell tbe cattle actually bought by plaintiff under the contract claimed by him to have been made in January. We have no way of determining just what was in tbe minds of tbe parties when tbe contract was made in March, except tbe writing itself. Tbat writing appears to be a complete contract. It is just what it purports to be — a bill of sale — but why it was made or what negotiations or new arrangements led up to its
Apparently there is no dispute as to the number of cattle actually delivered and accepted by defendant, to wit, sixty-one cows, seventy-three two year olds and eighty-three yearlings, a total of 217 head. The number specified to be delivered under the so-called bill of sale was a total of 335 head. There is no dispute but that plaintiff had gathered together, or, as he claims, purchased, something like 380 head, and had that number on hand at the time Exhibit 1 was executed.
Conceding that appellant’s contention is right, that all negotiations between the parties prior to March twelfth are immaterial as having been merged in the written agreement, but also conceding that the jury must have found that the final arrangements'for the sale and delivery of the cattle actually received by the defendant were made on the ninth and tenth of April, in what way is the defendant injured by the intro-
It appears that some days after the stock had been shipped from Spanish Fork plaintiff and defendant met in Salt Lake City, and after some hours spent in attempting to arrive at an adjustment concerning the matters involved, the defendant gave plaintiff a check for $1,666 which he insists was delivered by him with the understanding and conditioned that the same was to be in full settlement of all demands or claims upon the part of plaintiff. On the other hand, it is insisted by plaintiff that the check was"delivered, not in full settlement, but with the understanding and agreement between the parties that the question of whether there was any additional amount due plaintiff, and, if so, how much, should be left to arbitration, or, as stated, to three disinterested persons.
Complaint is made by appellant of the refusal of the court to give to the jury the following instruction respecting that issue:
“I charge you that under the evidence in this case there was a bona fide dispute between the plaintiff and the defendant, and if you find from the evidence that the defendant (Heiner) offered to pay, and tendered to the plaintiff (Davis) his check for $1,666 in full satisfaction of the demands of the plaintiff against the defendant, and that the plaintiff retained and cashed said check, then I charge you that the plaintiff accepted the check subject to the*436 conditions imposed by the defendant, and the plaintiff cannot recover in this action, and your verdict should be for the defendant: No cause of action.”
The court did, however, instruct the jury covering this particular issue as follows:
“If you find from the evidence in this case that at the time the plaintiff and the defendant met at the Cullen Hotel in Salt Lake City, Utah, in the month of April, 1917, after the cattle mentioned in the evidence had been shipped from Spanish Fork, that there was a bona fide dispute between the plaintiff and the defendant, and if you further find from the evidence that the defendant then and there offered to pay and tendered to the plaintiff the check for $1,666, which is in evidence in this case as Defendant’s Exhibit No. 9, conditioned that the said check was so tendered only as a full and complete satisfaction of all plaintiff’s claims against the defendant by reason of the transaction set forth in plaintiff’s complaint, and if you further find that the plaintiff, fully understanding that said check was so tendered and conditioned on defendant’s part, accepted said check, with or without protest, and retained said check, and afterwards cashed the same, then I charge you that the plaintiff accepted said check subject to the conditions imposed by the defendant, and the plaintiff cannot recover in this action, and your verdict should be for the defendant: No cause of action.”
We are unable to see what serious ground of complaint appellant bas for tbe failure of tbe court to give tbe instruction requested in view of tbe instruction given. Tbat there was a dispute between tbe parties respecting tbe amount due tbe plaintiff was testified to by botb plaintiff and defendant. Tbat tbey spent some hours in an attempt to come to some agreement as to tbe correct amount was also testified to by botb parties. Tbat at tbe conclusion of tbat meeting tbe defendant gave to tbe plaintiff a check for $1,666 is admitted, as is also tbe fact tbat tbe plaintiff afterwards received tbe amount of tbat check. Tbe controlling or vital question for determination by tbe jury was whether the check given by defendant was in full payment and so understood by plaintiff at tbat time. That question was fairly submitted
Plaintiff testified that the writing of March twelfth had been altered after its execution by adding the words “Feed bill excepted, at nine cents a day per head.”
Objection is further made that the court in its instructions failed to state the issues to be determined by the jury. That, in our judgment, is the most serious question presented on this appeal.
Appellant contends that it was the duty of the court to construe the pleadings and to charge the jury respecting the issues of fact to be determined, and relies upon the opinion of this court in the ease of Pulos v. Railroad, 37 Utah, 258, 107 Pac. 241, Ann. Cas. 1912C, 218. In that case the court charged the jury that the amended complaint set forth what the plaintiff claimed and the amended answer set forth the defendant’s version, and that both the amended complaint and answer were made part of the instructions, and the jury was referred to such pleadings for the particular statements as to what each party alleged in reference to the controversy. Following that, it appears, a statement was made “in general terms” giving the substance of the material allegations of the complaint and the denials and averments contained in the answer. In that case this court held that the charge involved two erroneous statements. One was that the jury had a right to take the pleadings with them to the jury room, and the other that it was their duty to consult the pleadings and determine for themselves the issues. The judgment was reversed upon that and other errors.
In the instructions under consideration no reference was made to the pleadings as such, and the jury was not instructed to examine the pleadings and from them determine the issues. However, the court made no attempt to instruct the jury respecting the issues further than to copy into the instructions the pleadings in the ease. Of necessity the jury, in order to determine the issues, were required to examine the pleadings.
“Of course, many things may he stated in a complaint that may be admitted or not disputed in an answer; and the same may be true with regard to the answer and the reply thereto. Under such circumstances, it may be misleading to the jury to copy the whole pleadings in stating the issues, because all of the matters -of fact that are admitted in a pleading or not denied no longer present any issue to be tried by the jury. In this case, however, all the facts relating to the respondent’s right of recovery were denied, and the court only copied such portions of the answer as raised some issue in the case.”
It is not the desire or intention, under like facts, to overrule or modify the holding.ih that case. In the case at bar three distinct causes of action are stated in the complaint. Allegations are made respecting at least two distinct agreements between the parties. The answer denies those allegations and alleges a new contract as an affirmative defense. By the reply the existence of that contract is put in issue. Moreover, is developed at the trial, from the plaintiff's evidence, and also from the defendant’s evidence, that the contract made in January was not in any way controlling, and was to all intents and purposes out of the case. Either the deal was completed and the cattle delivered under the written bill of sale of March twelfth or under the verbal contract made at the time of delivery of the cattle in April. That was the first and vital question to be determined by the jury. Another important question to be determined was whether the check for $1,666 given to the plaintiff was given and accepted in full settlement. It was the duty of the court to instruct the ‘jury and define to them the issues of fact they were required to determine. Merely handing the pleadings to the jury with no statement, either general or specific, does not, in the judgment of the writer, meet the requirements stated by this court in Pulos v. Railroad, supra, as follows:
*440 “The court in the written charge itself should clearly define the particular issue or issues submitted to the jury, and should specifically state to them the material facts alleged, denied, and admitted in respect of such issues.”
See, also, Baltimore & O. R. Co. v. Lockwood, 72 Ohio St. 586, 74 N. E. 1071; K. C. F. S. & M. Ry. v. Dalton, 66 Kan. 799, 72 Pac. 209.
We are all agreed that it was tire duty of the trial court to construe the pleadings and advise the jury as to the v issues of fact to be determined by them. The defendant
The order therefore is that the judgment of the court below be, and the same is hereby, affirmed, with costs.
Concurrence Opinion
I concur with Mr. Justice GIDEON in the order affirming the judgment and in all of his conclusions except that relating to the manner of stating the issues to the jury. As to that I also concur upon the proposition that merely reading to the jury a verbatim statement of the complaint, answer, and reply is not such a statement of the issues as-the law contemplates and may be misleading and prejudicial. The better practice in all cases is for the trial court to make a plain and concise statement in its own language of the issues to be determined by the jury, carefully omitting any and all issues that may have been eliminated by the parties themselves or the
In the opinion of the writer this involves an erroneous conception of the rule by which this court is bound. It gives sanction and recognition to the-old rule that prejudice is presumed from error, and that the burden of showing that the error was without prejudice falls upon the party that disclaims it.
Compiled Laws Utah 1917, sections 6622 and 6968, invoked by Mr. Justice GIDEON in disposing of another assignment of error, read as follows:
“6622. The court must in every stage of an action disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.”
“6968. No exception shall be regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting.”
These sections laid down the rule that harmless errors must be disrégarded. This, supplemented by the ordinary presumption in favor of judgments in cases of appeal, undoubtedly easts the burden of establishing prejudice on the party affirming it.
I am of the opinion that this question comes within the principle declared in Smith v. Columbus Buggy Co., a decision by this court referred to by Mr. Justice GIDEON. In that ease the trial court incorporated into the instructions to the jury a verbatim copy of the complaint and such portions of the answer as presented the material issues. This was excepted to by appellant and assigned as error on appeal. In, disposing of the exception the court, speaking through Mr. Justice Frick, then Chief Justice, said:
“While it is desirable in all cases that the jury, who are laymen and unfamiliar with the rules of pleading, or construction, should, as clearly and as briefly as possible, be told the precise issues that are to be determined by them, yet where the issues are stated in the language of the pleadings, and it is not made to appear that the jury were either misled or confused by the method pursued, the judgment cannot be reversed for the sole reason that the court stated the issues in the language of the pleadings. We can discover nothing in the records before us from which it is made to appear that the appellant was in any way or to any extent prejudiced by the statement of the issues in the manner in which it was done. This assignment must therefore fail.”
The court, while not approving of that manner of stating the issues to the jury, nevertheless refused to reverse the judgment on that ground alone. There being no reversible error, the judgment was affirmed.
In the ease of Pulos v. Railroad, also referred to by Mr. Justice GIDEON, the trial court permitted the jury to take the pleadings with' them when the cause was submitted, and also instructed them to refer to the pleadings for a particular statement of the issues involved. This court on appeal held that this method of stating the issues was error. The court,
An examination of the instructions given to the jury discloses the fact that the plaintiff was required to establish every fact alleged in his complaint by a preponderance of the evidence. No such burden was imposed upon the defendant notwithstanding he alleged and relied on certain affirmative defenses. For this reason it seems to me that appellant has less cause for complaint than respondent would have had if he had been the losing party.
The judgment of the trial court should be affirmed.