Farmer v. Thrift

Granger, J. [376] I. The notice in writing mentioned in the statement of facts is as follows: “May 18, 1893. To S. W. Farmer: You are hereby notified that within one hour after my cattle are through eating and drinking at any regular feeding time between now and Saturday night, May 20,1893,1 will weigh them out to you according to contract, and shrink them three per cent., and that I will weigh my hogs and deliver them to you according to contract, provided you will take both hogs and cattle on the terms and conditions of our written contract. And you are hereby requested to designate the time that you will receive them, and be present by yourself or agent, and see them weighed. You are also hereby notified that unless you comply with your contract, and receive said cattle and hogs by the time [377] herein specified, and pay for same according to contract, I will make other disposition of said property, and hold you responsible for all damages, and will declare forfeited the full amount which you advanced on the said cattle and hogs. B. L. Thrift.” The notice was admitted in evidence on behalf of defendant, against objections, with the following remark by the, court: “The paper is introduced in evidence, but is not, however, to be considered by the jury in any sense whatever as affecting the construction of the contract or compliance therewith, but is to be considered by the jury in determining the transaction generally, and the good faith of pláintiff in his demand as to whether or not the demand was made in good faith.” 2 It is urged that the jury could not understand w'hat was meant by the court in the expression, in its remarks, that the notice was not “to be considered by the jury in any sense whatever as affecting the construction of the contract or compliance therewith, but is to be considered by the jury in determining the contract generally.” In argument, the clause or expression is divided, and the claim made that the jury could not understand the different expressions. The clause, divided, is of doubtful meaning, and may be said to be so as a whole when disconnected from the other •language of the remarks; but, when all the word's are ■considered, we think that there is no difficulty in the jury understanding that the purpose of the evidence was to enable it to better judge of the intentions of the parties as to performing the contract. Of course, the ■remarks are to be considered in the light of the situation on the trial under which they were spoken and heard. There was much in the situation at that time to indicate that, because of .a; decline in the market, plaintiff wished in some way to avoid [378] the contract, and that defendant, for the same reason, was anxious to observe it, for by its observance he was a g-ainer, while plaintiff, in the particular transaction, must be a loser. In view of this situation, we think the jury must have understood that, as to what was the proper construction of the contract, and as to what acts, in a legal sense, would amount to a compliance,— such being matters of law for the court, — the notice was not to be considered; but generally upon matters of fact, including good faith, it could be considered. .With this view the remarks involve no error. 3 In the same connection it is urged that the remarks amount to an instruction to the jury, so as to be in violation of the provisions of the Code requiring instructions to be in writing. We do not think so. It was a remark made during the taking of evidence on the trial, and even though it may, in a sense, amount to an instruction, it is not of the class of instructions contemplated by the law as to their being in writing. The instructions required to be in writing are those to be given after the cause is argued to the jury. Code, sections 2784, 2788. We think that it is a very general practice, in trial courts, in passing upon the admissibility of evidence, and especially where it is admitted, and is of especial application, to state for what purpose it is admissible. The practice is to be .encouraged within proper limits, for two reasons: First, it enables counsel to better understand and shape the trial in conformity with the views of the court, or, if thought to- be erroneous, to meet the sitúa • tion as the facts or the law will permit, including the preservation of .exceptions; second, it enables the jury, when the testimony is received, to give it the intended application, for testimony, when received, is likely to be in some way at once applied. [379] II. The trial involved the question of the duty of the plaintiff, as the buyer of the •stock, to be present by himself or agent, to see it weighed; and the court gave instructions as to the law on that subject. It is urged that the instructions are erroneous, because there is no evidence as a basis for them. We will not set out the evidence, but, with our reading of the record, we think the instructions are fully warranted. 4 III. The parties are also in dispute as to what is meant by the provision of the contract that the cattle were “to be weighed up1 on full feed and shrunk three per cent, any time between the first and twentieth of May, 1893.” Appellant insists that the only words of the contract that are technical are “on full feed,” and that it is immaterial whether that means that the cattle should be weighed just after feeding or not, as the contract provides that they are to be weighed up, etc., any time between the dates fixed, and he says: “Let that phrase mean what it may, it was Thrift’s business to keep the cattle in that condition, and if he didn’t, it was Thrift’s fault, and not Farmer’s.” We do not concur in that view of construction. It is a plain inference from the contract, as well as a matter of common knowledge, that such cattle are not at all times, even during the day, on full feed, and it is equally a matter of common knowledge that there are feeding times for such cattle; and the phrase “at any time” is qualified by “on full feed,” and the meaning is that the cattle can be weighed at any time when on full feed, and no such construction can prevail as that they must be constantly so kept, or the benefit of the provision as to full feed be lost to the defendant. Neither of the parties, at the making of the contract, could reasonably have thought of such a thing. We think the court could have said to the jury that if the weighing was demanded ata time when the cattle were not [380] ■on full feed, because not the usual time for them to be so, the defendant had the right, within a reasonable time, to put them in that condition before weighing. The court did not, but submitted the question to the jury, and it must have been so found. Complaint is made of this action of the court in submitting the question; ■but, even if error, it is without prejudice, because the finding is what the jury might have been told as a matter of law. We find no prejudicial error in the record, and the judgment is affirmed.