George v. Emery, 107 P. 1

George v. Emery

107 P. 1 | Wyo. | 1910

Beard, Justice.

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 *359bill of sale) which recites, that for the consideration of $11,488, the plaintiffs do grant, bargain, sell and convey to defendants 450 head of cattle and 5 head of saddle horses (describing them) and contains the following statement: “The above cattle to be tallied before November 1st, 1907.” Defendants allege that they received only 279 head of said, cattle.

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 *360so to prove, were objected to by defendants on the ground that it was incompetent, being an attempt to vary the terms of a written' contract by an oral contemporaneous agreement. The testimony and offers were excluded by the court, and that ruling is the chief alleged 'error complained of. There is no controversy between counsel as to the law on this point. If the oral agreement sought to be proven by plaintiffs was made before the completion of the agreement which was evidenced by the writing, then it was incompetent because it would vary the terms of the written contract; but if made afterwards, for a good and valid consideration, it was competent. To our minds the testimony of the plaintiffs themselves clearly shows that the contract was not completed at the time of the alleged oral agreement. It appears that in the negotiations leading up to the contract, Eaton acted for the plaintiffs and Emery acted for defendants. That they met at a bank in Basin, Wyoming, in the forenoon of January 7, when the bill of sale was drawn, and probably signed at that time by liatón for George & Eaton. Eaton testified that after the bill of sale was executed he and Emery went to see George “to see if it was satisfactory to Mr. George the transaction I made with Mr. Emery.” George testified as to this meeting, “Well, they came down to see if I would agree to put the clause in the bill of sale to protect Emery at the bank, was his excuse for it, to see if I would agree to it, to have those cattle tallied.” It was at this time and at this meeting that plaintiffs claim the oral agreement to waive the tallying of the cattle by defendants was entered into. We think it is clear from plaintiffs’ own -testimony that this was before the completion of the contract. Counsel for plaintiffs say in their brief, “All parties admit, however, that immediately after this conversation they went back to the bank and the defendants gave the note in question.” This statement of counsel for plaintiffs removes any doubt that might exist as to whether or not the contract, as evidenced by the writing, was completed before or after the alleged oral agreement. The *361questions asked and the offered testimony, by plaintiffs, went no farther than to show that the bill of sale had been signed or executed before the alleged oral agreement was made, but do not purport to show- that it was before the contract was completed by the delivery of the bill of sale and by the execution and -delivery of the note in suit. The offered testimony was at variance with the terms of the writing, and was rightly excluded. Mfhether the credit on the note was made by direction of defendants, or as claimed by them, we do not regard as material. The note was negotiable and the bank was a bona ñde holder of the same as collateral security and could have enforced payment, at least to the amount for which it so held it. Plaintiffs are in no better position than they would have been had the full amount of the purchase price of the cattle been paid at the time of the sale and they had failed to deliver all the cattle agreed to be delivered by the terms of the written agreement.

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 *362to Omaha from 132 to 162 head of cattle bearing one of the brands of the cattle for which the note in suit was given. The deposition of this party was taken and introduced upon the trial, from which it appears he testified to a certain shipment of cattle by defendants bearing the brand in question. ITe also stated in his deposition that it was his duty as such inspector to inspect all cattle shipped from the State of Wyoming. We think due diligence would have required the plaintiffs to have interrogated this witness as to all shipments of such cattle by defendants, and having failed to do so, they are not in a position to complain or to urge a new trial in order to procure his testimony as to other shipments. Nor does it appear that the cattle so claimed to have been shipped were not included in the number admitted by defendants to have been received, and for which the court gave plaintiffs credit.

We find no prejudicial error in the record and the judgment of the District Court is therefore affirmed.

Affirmed.

Potter, C. J., and Scott, J., concur.