Snyder v. Loy

Opinion by Willard, J., This was an action of assumpsit in the court below by H. C. Snyder against Edward R. Loy and James R. Loy, trading as Loy Brothers, to recover damages for an alleged breach of parol contract. At the trial it was alleged on the part of Loy Brothers that in March, 1895, they had on hand for sale fifty-five head of cattle, thirty of which were in a barn near their house, fifteen at their lower barn and ten at a barn known as the Stein barn. That they sold to Snyder the cattle at the lower and Stein barns, twenty-five in number at $4.50 per hundred pounds, to be delivered “ the week in which the 1st of June comes ” (the 1st of June came on Saturday). That Snyder paid $110 on the contract. For the .remaining thirty head they were to receive from Snyder $4.20 per hundred pounds for twenty thereof, and $4.50 per hundred pounds for ten thereof, the last lot to be delivered on or before June 20, 1895. That the week in which the 1st [207] of June came went by and Snyder did not come for the twenty-five cattle, and on Monday, the 3d day of June they were sold by them to another party at the same price. That they offered to deliver the remaining thirty head on or before the 20th of June. Snyder refused to accept the remaining cattle on the terms named. On the other hand it was alleged by Snyder that he purchased from Loy Brothers fifty-five head of cattle under one contract, the consideration to be paid as follows : $100 cash down, the balance on delivery of all the cattle after being weighed at Loy’s scales, $4.50 per hundred pounds to be paid for thirty-five oE the best or higher grade, and $4.20 per hundred pounds for the balance. That he was to receive and Loy Brothers were to deliver one carload of the cattle during the first week in June which ended on the 7th. That the number constituting a car load was not specified, nor was there any agreement as to the. grade of cattle to be taken first. That he paid $110 on the contract and soon afterwards sold the entire lot to Charles P. Walter at $5.25 per hundred pounds to be delivered at the time specified in his contract with Loy Brothers. That they were informed of the sale to Walter, and on June 5th in company with Walter he went to Loy Brothers for his first carload and was informed by them that twenty-five of the cattle had been sold and he, Snyder, could not have them but could have the remaining thirty, but must forfeit the $110 paid on the first lot. On these terms Snyder refused to take them. The facts were found by the jury as alleged by Snyder. From the evidence in this case on the part of the plaintiff it is apparent that he tried at first to purchase twenty-five of the very best of the cattle and did not want the whole lot. To this the defendants objected, refusing on their part to make the deal unless it included the entire lot. To this the plaintiff finally agreed resulting in the contract as found by the jury. The evidence is explicit that the defendants who made the bargain said “ we would not sell them separate at all, but would sell the whole together.” It is evident from this testimony and other testimony in the case that the jury was warranted in finding that the plaintiff undertook to buy and the defendants to sell the fifty-five cattle as one herd, to be delivered in part during the first week of June and the balance on or before the twentieth of that [208] month. The consideration was to be paid on delivery of the whole except as to the immediate payment of $100, and the amount of the consideration was to be computed at so much per hundred weight of the entire live weight of the whole lot when properly ascertained on scales. Thirty-five were graded higher than the remaining twenty, and in arriving at the total price, each hundred weight of the former was to be multiplied by $4.50 and the latter by $4.20. It is alleged that the learned trial judge submitted to the jury the abstract question whether the contract was entire or severable, when he should have declared the law himself. This he could not have done under the circumstances of the case for the reason, as the facts were found on the one side or the other, so must the character of the contract be determined. Had the jury found the facts as testified to by Edward R. Loy that the cattle in the lower and Stein barns, twenty-five in number, were sold for $4.50 per hundred weight, to be delivered on or before June 1, and the cattle in the home barn, thirty in number, at another price, to be delivered on or before June 20th without further explanation than that given in his testimony, the jury would have been warranted under the charge of the court in finding a severable contract. But under the plaintiff’s theory, which they evidently believed and adopted, the jury were fully warranted in finding the transaction an entire contract. Under the conflicting testimony in the case the trial judge committed no error in saying to the jury: “The first question for you to determine in this case is, what was the contract between the parties? Did the plaintiff buy all of the fifty-five head of the said cattle? Was the contract an entire one or was it a divisible contract? By an entire contract I mean, did the plaintiff agree to purchase the fifty-five head of cattle as one contract for one round consideration, although it was to be ascertained by the weight of the cattle, and did the defendants agree to sell the whole fifty-five head of cattle ? ” This was a fair presentation of the case to the jury and they were fully instructed as to what was meant by an entire contract. The second, third, fourth and fifth points put by the defendants to the court were properly answered. Without the aid of the jury the court could not determine the facts upon which the points were predicated. In Hull & Co. v. R. R. Co., [209] 1 Pa. Superior Ct. 651, this court held: “ where points con^ tain a proposition of law, which depends for its proper application on the determination of questions of fact, regarding which there is a material dispute, it is not error for the trial judge to qualify his affirmance of the points by pointing out to the jury the duty imposed upon them of determining the disputed facts.” The cattle in question were of different sizes and grades, some good and some inferior. To take the whole at the agreed price might have been desirable, but to separate the inferior would tend to render them undesirable and unsalable. “ The contract may be entire or severable according to the circumstances of each particular case ; it has been said in speaking of contracts of sale, the criterion is to be found in the question whether the whole quantity — all of the things as a whole — is of the essence of the contract. If it appears that the purpose was to take the whole or none, then the contract would be entire; otherwise, it would be severable. It is sometimes difficult to determine whether the contract is entire or severable, in such cases, and there is great diversity of decision on the subject; but, on the whole, the weight of opinion and the more reasonable rule would seem to be that, where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter. or by the act of the parties: ” Clark on Contracts, page 657. The rule above stated is sustained by the decisions in Pennsylvania, among which are: Shaw v. Badger, 12 S. & R. 275; Quigley v. DeHaas, 82 Pa. 267; Carmalt v. Platt, 7 Watts, 318. After a careful review of all the testimony in connection with the judge’s charge, we cannot say the charge was inadequate or biased. The comments upon the testimony do not appear one-sided or argumentative. The testimony of the defendants is carefully presented, together with the testimony of each witness in corroboration of the defendants. The jury were positively instructed that if the theory of the defendants as stated was correct, the plaintiff could not recover. It is said by appellants’ counsel that the learned trial judge misquoted to the jury the alleged conversation between Edward Loy and Snyder. Such misquotations, if made and are material, [210] should be corrected, and we have carefully examined the record and find the quotation as follows: “You have done well by these cattle, you made money on them, and you ought to give me more money.” The evidence was as follows: (Evidence of Snyder.) “ He (Loy) says, couldn’t you make them cattle in the stable $4.25 which you have bought at $4.20 ? And I says, I can’t do that.” (Evidence of C. P. Walter.) “ Loy said to Snyder, I hear you have done well on these cattle and you ought to give me five cents a hundred for doing so well, and Mr. Snyder .said, “No, I can’t do that, or I couldn’t do that, but if you want more money on the cattle I will pay you some more money.” The language quoted, when compared with the testimony is not open' to the harsh criticism of appellants’ counsel that “ no witness so testified, nor is there any testimony which would justify this quotation.” The fact that on Saturday, the 1st day of June, Loy Brothers wrote to Snyder as to what he intended to do -with tlje cattle, demanding a reply by wire at a place where there was no regular telegraph station, followed by a sale on the following Monday to another party was a circumstance that ought to have been called to the attention of the jury, and the judge committed no error in so doing. Comments of the judge upon the testimony of the plaintiff and his witnesses perhaps occupied more time than was devoted to the appellants and their witnesses. But we discover no unnecessary or uncalled for comments upon the whole testimony, and the charge taken as a whole is not open to the criticism of being argumentative or biased. It is within the rule of Price v. Hamscher, 174 Pa. 73, and cases there cited. The specifications of error are all overruled and the judgment affirmed.