Platt v. Union Packing Co.

This action was brought to recover damages for an alleged breach by defendant, a corporation, of a contract to purchase cattle. Judgment passed for plaintiff and defendant appeals.

Plaintiff based his right of action upon an oral agreement claimed to have been made with defendant through its agents, under the terms of which the defendant agreed to purchase approximately 350 head of steers at an agreed price of $8.50 per hundredweight, which would aggregate about $30,000. The agreement allegedly was entered into on May 13, 1935, at a time when the cattle were being fed for market by plaintiff at the Anderson ranch near Chandler, Arizona, and were in charge of plaintiff’s son for the purpose of sale. On May 15, 1935, fifty-six head of steers were shipped to defendant and paid for at the price of $8.50 per hundredweight, while on June 17th two additional carloads were likewise shipped to defendant and paid for as in the first instance. On June 20th defendant corporation advised plaintiff that it would not take the remainder of the steers at the price of $8.50 per hundredweight. Plaintiff recovered

Stating the facts most favorably to plaintiff, as we must do when the findings are in his favor, the circumstances attendant upon the making of the agreement in question were substantially as follows: For some years plaintiff had been a cattle raiser and -feeder in Arizona, while defendant corporation was engaged in the business of dressing and packing meat, in connection with which it purchased cattle. Adolph Miller was president and general manager of defendant corporation, and Nate Miller, his son, was employed as a cattle buyer. Tom King was a commission buyer operating out of Phoenix, Arizona, and on previous occasions had purchased cattle for defendant, the latter of whom had provided King with printed forms of draft upon which he was denominated “purchasing agent” and which he used as a medium of payment for cattle purchased by him in behalf of defendant. The relationship of Tom King and Nate Miller with defendant was known to plaintiff and his son and agent, Harvey Platt. In the month of May, 1935, defendant, through its general manager, advised Tom King of the need for some fed steers, and in connection therewith Nate Miller went to Arizona, where he joined King, and the two of them, on May 13th, inspected the plaintiff’s steers at the Anderson ranch. Upon that occasion inquiry was made by King and Miller as to the price wanted for the steers, how they would be shipped, and the length of time that would be given defendant to take the cattle. Plaintiff’s son and agent informed King and Miller that the price would be $8.50 per hundredweight, f. o. b. shipping point, with a four per cent deduction of weight for shrinkage, and that plaintiff would give defendant thirty days within which to take the cattle. Upon objection of King and Miller to the condition of some of the steers, it was agreed that one steer would be excluded, thus leaving 351 head to be shipped. On the evening of that day Nate Miller communicated by telephone with his father, defendant’s president and general manager, advising the latter that he had bought for defendant corporation the 351 head of plaintiff’s steers upon the terms hereinbefore set forth; and on the following day King discussed the purchase with the

Appellant’s first point is that the alleged oral contract for the purchase of the 351 head of cattle at a price approximating $30,000 was illegal and in contravention of the statute of frauds, for the reason that no sufficient showing was made at the trial of a mutual understanding that the delivery of and payment for the stock shipped by plaintiff to defendant should constitute a part performance of the verbal contract in its entirety. The intention of contracting parties must be determined by their words, acts, conduct and the circumstances existing at the time the agreement was brought into being. It is well settled in principle and by a long line of authorities that a part delivery of personal property subsequent to the sale thereof satisfies the statute of frauds. The Arizona statute of frauds (sec. 2808, Rev. Code of Arizona) is similar to our own (sec. 1724, Civ. Code; sec.

Section 2116 of the Revised Code of Arizona, providing that upon the sale or transfer of any meat animals, the delivery of such animals shall be accompanied by a written bill of sale from the vendor to the party purchasing, and that upon the trial of any person charged with the theft, unlawful possession, etc., of any such animal, the possession under claim of ownership without such bill of sale shall be prima facie evidence against the accused that such possession was illegal, has no application to the case at bar, because appellant’s failure to obtain a bill of sale from the respondent for the cattle shipped to and paid for by appellant does not in anywise affect the appellant’s absolute title thereto as against any claims of respondent.

The next point made by appellant is that the record is barren of any evidence sufficient to support the trial court’s finding that Tom King and Nate Miller were the authorized agents of appellant corporation and vested with authority on behalf of appellant to enter into the contract on its behalf. Appellant earnestly urges that the authority of King and Miller was limited to the right to purchase only

Appellant’s next two contentions (1) that the finding of the trial court that the purchase was not made upon the promise and representation of respondent that the steers would be fed, fattened and conditioned by the respondent until such time as they would be “fat steers,” and (2) that the finding that all of the steers were to be taken within thirty days, find no support in the evidence, must fall before the elementary rule that in examining the sufficiency of the evidence to support a questioned finding all intendments and inferences are in favor of the finding of the trial court and that all conflicts and discrepancies must be resolved on appeal in support of the trial court’s finding.

Appellant’s next claim, that there was no meeting of the minds of the contracting parties as to the time within

What we have just said applies with equal force to the next ground of appeal, which is that the finding of the trial court that there was an agreed extension of time for the performance of the agreement is without evidentiary support. The testimony as to the delay in deliveries at appellant’s suggestion because the latter was “full up” with cattle, and again until appellant’s general manager could go to Arizona, is typical of the character of testimony in the record which supports this particular finding of the court.

There is nothing in the final point made by appellant, that the court erred in holding and concluding that the breach, if any, on the part of appellant occurred on June 20th. In support of this claim, it is asserted that this date was thirty-eight days after the making of the oral agreement and eight days after the thirty-day period which the court found was the term of the contract; and further, that appellant was under no obligation to take the cattle, except in installments as they became “fat”, and that the “time or times when the goods ought to have been accepted” must be looked to for the purpose of determining the measure of damages for the buyer’s breach. Without question, the contract was entire. (Norrington v. Wright, 115 U. S. 188 [ 6 Sup. Ct. 12 , 29 L. Ed. 366 ].) The provisions as to shipping the cattle in different weeks and at different times and as to paying for each shipment upon its delivery, do not split up the contract

The judgment is therefore affirmed.

York, P. J., and Doran, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 17, 1939, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 19, 1939.