Hancock v. Buckley

Opinion by Ellison, J. Defendant’s objection is that as plaintiff’s petition is for furnishing him pasture for his cattle, during the season, from the middle of April till about the middle [464] of October, and the proof was that be put Ms cattle in on April 15, and took them out on June 15, following, plaintiff did not furnish him pasture longer than Jnne 15. And that, under the petition, his recovery ought to ■have been limited to the contract price up to June 15, and not afterwards. That if further recovery was sought plaintiff should have asked, in a separate count, for damages on account of defendant’s failure to use the pasture. There is no doubt that there can not be a suit upon one cause of action and a recovery on another; the number of adjudications on this subject, in this and other courts, makes this a familiar rule. But it is not a question of easy solution, often, as to what cases will fall within that rule. The one before us is not without difficulty. It turns really upon the word " furnish. ’ ’ Plaintiff agreed to furnish him pasturage from April till October, and did put him in possession of the pasture by allowing, or having him turn in on April 15, and seeing that the pasturage, in quantity sufficient, was there till October. This, we think, was furnishing the pasturage as contemplated by the petition. In effect, plaintiff, on April 15, the day defendant turned in, says to him, here is the pasture I agreed to furnish you for this season ; I now furnish it to you : I turn it over to you. The fact that after having it furnished to him he refused to make use of it for the full time, can make no difference. This case must be looked at from the standpoint of its own facts and circumstances. It is not like a case where a man might agree to furnish, on demand, things not yet in his possession or in existence perhaps; for here plaintiff did absolutely furnish the pasture, and defendant took possession of it. Of course, plaintiff did not, on April 15, bodily turn over to defendant, grass, then grown, sufficient to sustain Ms cattle during the season, but he did turn over to him the growing grass, and the land upon which it grew, and in nature would continue to grow. It can not be objected to this view of “furnish” that, if he furnished to defendant when he turned [465] it over to Mm in' April, lie might have sued or demanded the money of him then and there, for, under the contract, defendant was to pay at a certain rate per month, “the money to be paid at the end of the season, or when the grass should fail.” And there was a contingency in the contract stated in the petition of the length of time, which, in nature, he would be able to use the' pasture so furnished. If one should agree to “furnish” another, for one year, forty acres of land to put in corn, and twenty acres of pasture land for his teams, and put him in possession of it, but at the end of six months the lessee quits the place, has not the one performed his contract % Has he not furnished him the land, and can he not sue squarely on the contract, alleging his own performance, and the other’s failure to pay ? We do not believe the allegation of the cause of action, to which the proof was directed in this case, was unproved “in its entire scope and meaning,” as contemplated in section 3702, Bevised Statutes, 1879. The second point must, likewise, be ruled against defendant. That part of the verdict of the jury dividing rhe costs between the parties, was wholly outside of the issues submitted to them, and was properly treated as surplusage by the court. In the case of Marquand v. Wheeler (52 Cal. 445), the jury returned a verdict for plaintiff for thirty-five hundred dollars “in gold coin.” In that case it is held the jury’s adding “in gold coin” to the verdict was of no legal consequence, and judgment should have been entered disregarding the mere character of the money. This decision was at a time when the difference in legal tender and gold coin, made a difference of several hundred dollars. To the same effect are Watson v. Ry. Co. (50 Cal. 523); Chamberlain v. Vanee (51 Cal. 85.) In the case of State ex rel. Webster v. Knight (46 Mo. 83), the jury returned'the following verdict: “We, the jury, find a verdict for defendants, they to pay the costs of this suit.” The court says of this that “the [466] jury found for defendants; the verdict was good and complete. The matter of costs was not in issue, and was not submitted to them. That part of their verdict, therefore, was merely void, and should have been disregarded as surplusage.” Although this was a mandamus proceeding, we think it fully applicable to the status of this case. The fact that the supreme court ordered the writ to issue commanding the circuit court to enter the verdict as a simple finding for defendant, but gave plaintiffs leave to file their motion for new trial in the same manner as if the verdict had been received and entered at the proper time, we do not conceive to be an intimation as suggested by counsel, that a new trial should be granted because of the. verdict being framed as it was, but rather, as the regular time had passed for plaintiffs to file their motion, on account of the mandamus proceedings intervening, the court was simply still holding open to them that right, if from any cause which took place at the trial, they desired to appeal. We think the judgment should be affirmed, and it is so ordered. All concur.