107 P. 1 | Wyo. | 1910
The plaintiffs brought this action to recover the sum of $1,371.47 with interest and attorneys’ fees from the defendants; alleging the same to be a balance due upon a promissory note executed by defendants to plaintiffs for the sum of $4,053.12, dated January 7, 1907, and due nine months after date; that about April 1, 1907, plaintiffs delivered said note to the Bank of Commerce, Sheridan, Wyoming, as collateral security for a note of $3,000, dated April 1, 1907, ahd due October 7, 1907; that the $3,000 note had been paid and the collateral note returned by the bank to plaintiffs with the indorsement of $3,044.16 thereon, which ’had been paid. The defendants answered admitting the execution of the note, but denied that the sum indorsed thereon, or -any sum, had ever been voluntarily paid by them thereon, and alleged that the amount of the credit on said note was deducted by the bank from moneys of defendants on deposit in said bank and applied in payment of said $3,000 note of plaintiffs and credited upon the note in suit without authority of defendants. That the consideration for said note had wholly failed, and that there never was any consideration therefor; that at the time of the execution of the note the plaintiffs represented to defendants that they owned 450 head of cattle and 5 head of horses which they desired to sell, the cattle at $25 per head, and the horses at $50 per head, amounting in the aggregate to $11,500. That defendants agreed to purchase said cattle and horses, and that all of said cattle should be tallied on or before Nov. 1, 1907, and that defendants should only pay for the number of cattle actually rounded up, gathered, tallied and delivered. That at the time of the transaction, the defendants paid in cash and by assuming certain indebtedness of plaintiffs the said sum of $11,500, except the sum of $4,053.12, represented by the note in suit. That as evidence of said agreement the plaintiffs executed and delivered to defendants a contract in writing (a copy of which is set out in the answer and is in form a
By way of counterclaim against plaintiffs defendants al- , lege substantially the same facts as in the first count of their answer, and that by the payments made at the date of the contract the plaintiffs were overpaid for the cattle actually received by defendants in the sum of $567.17, and by the credit on the note in suit the further sum of $3,044.16, for which sums, with interest, they prayed judgment against plaintiffs, and that plaintiffs take nothing by their petition.
The plaintiffs replied, admitting that the note in suit was given in payment for cattle; that the bill of sale was executed and delivered; that $3,044.16 was paid on the note, but deny that the payment was involuntary. They then allege that on or about January 7, 1907, the defendants expressly waived all counting or tallying of the cattle in question and agreed to accept and did accept said cattle at the number of 450 head upon the public range. That about February 1, 1907, defendants shipped a large number of said cattle to South Omaha, Nebraska; that no count of the same was kept, and that by so doing the defendants rendered a correct tally or count of said cattle impossible.
The cause was tried to a jury, and at the close of the evidence, on motion of defendants, the court instructed the jury to return a verdict in favor of defendants and against plaintiffs in the sum of $3,324.23, which .was accordingly done. Judgment was entered upon the verdict, a motion, by plaintiffs, for a new trial was denied, and plaintiffs bring error.
On the trial the plaintiffs offered and sought to prove an oral agreement waiving the terms of the bill of sale as to the tallying of the cattle. This testimony and the offers
It is contended that, as there was a conflict in the evidence as to -the number of cattle received by the defendants, the court erred in directing a verdict in their favor. But if error be conceded in that respect, it appears that the court gave plaintiffs credit for the highest number of cattle shown by the evidence to have been received by defendants. Such being the case plaintiffs have no cause to complain on that ground. If error, it was without prejudice to plaintiffs. It is also contended that the court should have submitted the question of the amount of recovery to the jury. That was simply a matter of computation, and it is not claimed that there was any error in such computation, and therefore not prejudicial to- plaintiffs.
One ground for a new trial contained in plaintiffs’ motion therefor, is newly discovered evidence. The new evidence claimed to have been discovered, during the latter part of the trial, is, that Claude L. Talbot, Brand Inspector for Wyoming State Stock Growers’ Association, at Omaha, will testify that during the year 1907 the defendants shipped
We find no prejudicial error in the record and the judgment of the District Court is therefore affirmed.
Affirmed.