5 S.D. 364 | S.D. | 1894
This is an action to recover damages for breach of a contract. H. C. Slavens, one of the defendants, now appellants, had a contract with the commissioner of Indian affairs for supplying the Rosebud agency with beef cattle for issue to the Indians, the terms of which were fully disclosed by the pleadings in this case. To fill this contract, the Slavens made a contract with the plaintiffs, now respondents, by which the plaintiffs undertook to furnish and deliver to defendants at said Rosebfid agency, during the months of September, October and November, 1891, 1,400 head (subsequently by agreement reduced to 1,200) of good straight, merchantable steers, not over 7 years of age, to weigh not less than 900 pounds average, for each delivery, and no steer to weigh less than 800 pounds. The cattle to be so furnished and delivered were, by such agreement, to conform in all respects to, and fill the requirements as to quality and condition of, the contract between Slavens and the commissioner of Indian affairs. By their said contract the plaintiffs agreed to hold in herd in the vicinity of the agency the. number of beef cattle required for the fulfillment of their contract, and to deliver the same to the Indian agent at said Rosebud agency, upon notice by him or by the defendants that cattle were required for issue. It was further agreed in the contract with plaintiffs that deliveries of these cattle should be made during each of the months named in numbers and amount in weight as the agent at said agency should require for issue, or call for, or as defendants should call for, for such issue. It was also agréed in said contract that at the last call for cattle which should be made by the said agent in the month of November the whole remaining and undelivered portion of the 1,200 head should be weighed and delivered by plaintiffs to defendants, and the defendants agreed to receive and pay therefor the same contract price, to-wit, $2.75 per 100 pounds gross weight, and upon the same conditions as to quality and weight. By this contract it was also agreed that the plaintiffs should receive from the
The case was evidently tried with great spirit and earnestness on both sides. The record is a very long one, and the assignments of error very numerous. Appellants have grouped these under four heads, and we can probably more clearly follow their argument by doing the same. They are classed as: (1) Those relating to the admission of testimony upon the question of damages sustained by plaintiffs for holding the herd of cattle in the vicinity of the agency during the month of September, 1891, and the instructions given and refused upon this branch of the case; (2) those relating to the admission of testimony as to the market value of such cattle at Chicago and Sioux City on the 13th day of November, 1891; (3) those relating to the conversation between Mathieson, one of the plain
Still pursuing the order of counsel on both sides, we first notice the alleged errors grouped in the third class. The appellants contend that these errors result from a wrong theory maintained by plaintiffs and respondents, and adopted by the trial court, as to the effect and force of that part of plaintiffs’ reply to defendants’ counterclaim wherein it is alleged that at the request and by arrangement with J. W. L. Slavens, one of the defendants, the plaintiffs picked out the largest and best cattle in the herd for the deliveries of October 13th and 17th, and thus greatly reduced the average weight and quality of the remainder; defendants agreeing that, in consideration of plaintiffs so doing, they would accept the remainder of said cattle to fill out the said 1,200 head in number, or 1,200,000 pounds in weight. Appellants insist that, having based their cause of action in their complaint upon a full compliance with their contract, plaintiffs must rely upon such a case and prove it; and that the allegations of the reply were inconsistent with and a departure from, those of the complaint. But it must be remembered that the reply does not assume to state the grounds of plaintiffs’ cause of action, but only attempts to present reasons why defendants’ counterclaim ought not to prevail. The counterclaim rested upon the alleged fact that plaintiffs had failed to provide the cattle of the quality agreed upon in the contract. We would understand the position of the parties under their pleadings to be as follows: Plaintiffs claim to have fully performed their contract. Defendant’s deny, and for a counterclaim allege affirmatively that plaintiffs failed to furnish cattle of the condition and quality defined in their contract, and
Prefatory to noticing what this evidence was, we might say that it appears that the plaintiffs made four deliveries of beef cattle under this contract to the Indian agent at Rosebud agency. The first was made October 3, 1891, and averaged in weight 1,038 pounds; the second, October 17th, averaged 1,026 pounds; the third, October 31st, averaged 927 pounds; and the fourth, November 13th, averaged 863 pounds. By the contract between plaintiffs and defendants the cattle were to average 900 pounds, no animal to weigh less than 800 pounds, and to correspond with the government contract as to quality and weight. These facts, I think, are undisputed. Prom Mathieson’s testimony we quote as follows: “Q. State the reason, if there is any reason, for the delivery of a larger and heavier class of cattle at the first delivery in October, under this contract. A. The reason was that the Slavens requested me to deliver the largest and best cattle for the first two deliveries. Q. State what was said — what you said and what he said. A. I stated that I had received his letter of the previous day, requesting me to put in the best cattle. I asked him why he wanted the best cattle put in first; why not take the average of the herd; they were all good cattle to fill the contract. And he said he wanted the best cattle put in first, for the purpose of making a good impression on the receiving officer. That it was his first delivery of cattle under his contract, and that, if I would put them in, he would take the remainder of the herd. Q. What did you say? A. I said I would deliver the best cattle first, under these circumstances. Q. Bid you deliver the best cattle first? A. I did.” Some of the questions which elicited these answers were objected to, and in one or two instances a part of the answer given by the witness was
Now, how did it affect the statement of the cause of action as set out in the complaint? To recover upon the contract the plaintiffs must have been able, willing, and ready to deliver such cattle as their agreement called for, and this they allege in their complaint they were willing and ready, and offered, to do. Mathieson’s testimony tends to support such allegations. Referring to the herd driven to the agency from which the delivery for November 13th was to be made he says: “They were good, merchantable beef steers, and would weigh over 900 pounds.” He further says that none of them would weigh less than 800 pounds. And again: “I had a conversation at the time the delivery was taking place as to the selection being made by the Indian agent and Major Earnest, and told Mr. Slavens they were selecting the smallest cattle there was in the herd. He said that was so, too, and also said that he did not think they were taking an average of the herd. The receiving officer took some of the two year olds.” Other witnesses on the part of the plaintiffs testified that the cattle thus selected were not an average of the herd. These statements as to the weight and quality of these cattle, and Mathieson’s testimony as to what was said by Slavens, are denied by some of defendants’ witnesses, but for the purposes of this review questions depending upon the weight and force of conflicting evidence have been settled by the jury. If the reply abandoned the theory of the complaint, and set up a new state of facts, or a substituted agreement, upon which plaintiffs based their cause of action, it would be obnoxious to the criticism made by defendants, but it does not. It declares performance, or readiness to perform, on their part; and the evidence, whether convincing to us or not, tends to show it and seems to be satisfac
It is further insisted by defendants that no authority is shewn by which J. W. L. Slavens could bind his codefendant by his agreement, if made, in respect to putting in the best and largest cattle first. It is true there is very little direct evidence as to the business relations between the two defendants, but in the testimony of J. W. L. Slavens he several times refers to himself and his son H. C. Slavens, the other defendant in the case, as constituting “the firm,” and he explains why the government contract made with H. C. Slavens, one of these defendants, was made in his name, instead of in the name of “the firm.” This evidence was all in when Mathieson testified as to the arrangement with J. W. L. Slavens for putting in the best cattle first. Defendants offered no objection to it on the ground of want of authority to bind both defendants. The parties and the court seem to have treated the partnership relation of defendants as conceded and recognized. It was the theory upon which this question was tried. Under such circumstances, we do not regard the objection as forceful. Under the second head counsel discuss the assigned errors relating to
Mathieson testified that at Kansas City, after the making of the contract, and so when they had a right to do so, defendants notified him to have 400 head ready for delivery in Sep ■ tember. This notice required them to have and hold in herd
The duties and liabilities of plaintiffs under their contract with defendants were not measured by the duties and liabilities of H. C. Slavens under his contract with the government. We do not, therefore, regard the authorities cited by appellants, construing peculiar provisions of government contracts, as appl icable, except to the extent that such or equivalent provisions appear in this contract. We think the cases cited by appellants turn upon conditions and terms which perhaps may be found in Slavens’ contract with the government, but which are not found in, or made a part of, the contract between plaintiffs and defendants. In Lobenstein v. U. S., 91 U. S. 324, the contract was that Lobenstein should have all the hides of beef cattle slaughtered for Indians at Ft. Sill “which the superintendent of Indian affairs at that place shall decide are not required for the con fort of the Indians, the number of hides to be about 4,000, more or less.” The court held that by the express terms of the contract Lobenstein was only entitled to such hides as the superintendent of Indian affairs decided were not
The alleged errors named in the third group relate to the admission of evidence as to the market value of cattle at Rosebud agency on the 13th day of November, 1891. Mathieson, as a witness, was interrogated as follows: “Q. State, if you know, the market value of good, straight, merchantable cattle of the kind mentioned in this contract at Rosebud Indian agency on the 13th day of November, 1891. — the market value I mean.” He answered, “$2.25 per hundred pounds.” ‘‘Q. The question is, if you know the value. State if you know the market value. Answer the question ‘Yes’ or ‘No.’ A. Yes, I think I know. Q. State what the market value was. A. $2.25 per hundred pounds gross weight.” Defendants’ counsel objected severally to these questions and answers, on the ground that the witness had not shown himself competent to testify as to such market value. The overruling of this objection is assigned as error. The witness had previously testified that he had been in the cattle business‘‘off and on” for the past 20 years, and for the last 7 or 8 years his principal business had been buying and selling cattle. That during the last two years he had handled three or four thousand head of cattle. As a cattle man he had made this contract with defendants for the delivery of a large number of cattle at this place, Rosebud agency. While he had not definitely stated his sources of infor
We come'now to the fourth group of alleged errors, which relate to the quality of cattle presented on the 13th day of November, 1891. First, the defendants claim error in the admission of testimony as to the three deliveries of beef cattle previous to November 13th, on the ground that there was, and could be, no dispute concerning the quality and condition of the preceding deliveries, because they were accepted and paid for by defendants, and that it was so admitted in the answer. The complaint specifically alleges the making of the contract sued upon, and avers these deliveries in pursuance of it as in partial performance by plaintiffs of their contract. The answer denies ‘ ‘each and every allegation in said complaint contained” except that plaintiffs are copartners. Defendants and appellants however, contend that the further statements of the answer specifically admit that these deliveries were made, and assert that they were accepted and paid for by defendants, thus making it unnecessary and improper for plaintiffs to prove the same. In
The next question of importance is the effect of the notification of plaintiffs by defendants on the 13th and 14th of November that they would not accept the remainder of plaintiffs’ cattle as and in fulfillment of their contract. By the contract it was agreed that at the last delivery in November the defendants should accept of plaintiffs the remainder or undelivered portion of the 1,200 head, or its equivalent, 1,200,000 pounds, as had not been called for during the three months of September, October and November. It would seem from a letter from Gleckler to defendants, introduced by defendants, and which J. "W. L. Slavens testified was received early in November, that plaintiffs understood that the issue of the 13th of November was to be the last, and that at that time it would be the duty of defendants to receive the remainder of the 1,200,000 pounds of beef cattle. How they got such understanding, or whether it was
In the contract between Slavens and the government it was provided that the cattle furnished under it should have been at least 12 months in succession north of the south line of Kansas. This provision was adopted into, and made a part of, the contract between- plaintiffs and defendants by force of the requirement that the cattle delivered under the last agreement should be of the kind and description mentioned in the first. The answer of defendants contained an allegation that “they are informed and believe” that the rejected cattle ‘‘had not been north of the south line of Kansas for twelve months, as required in said contract.” If this allegation was a denial in respect to this particular condition of the averment of the complaint that plaintiffs had in all respects fulfilled the requirements and per
In conclusion we will only observe that there are a few very close questions in this case, and in one or two respects we should be- better satisfied with the charge of the court if it- were slightly different; but taking it as a whole, we think it presented the case to the jury upon a correct theory. Upon the evidence we think the plaintiffs were fairly entitled to a verdict for the value at the contract price of the 149 head of cattle delivered on the 13th of November, and interest on the same. The verdict rendered was but a slight increase over this. Upon what particular ground or claim of plaintiffs this excess was given, we have no means of knowing. The evidence was such that it might have been given upon either. We do not find any