Lonergan v. Buford
148 U.S. 581 (1893)

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U.S. Supreme Court

Lonergan v. Buford, 148 U.S. 581 (1893)

Lonergan v. Buford

No. 203

Submitted March 30, 1893

Decided April 10, 1893

148 U.S. 581

Syllabus

A contract being entered into for the sale of extensive ranch privileges and of all the cattle on the ranches except 2,000 steers reserved in order to fulfill a previous contract, it is competent, in an action founded upon it, to show that the steers contracted by the previous contract to be sold were to be of the age of two years and upwards, and, that being established, if there were not enough of that age to fulfill the previous contract, the seller could not take animals of other ages from the rest of the herd to make up the requisite number.

The contract further provided that payment of the larger part of the consideration money was to be made in advance, and that delivery was to be made on the purchaser's making the final payment on a given day. On the day named, having made the previous payment, he made the final one under protest that, inasmuch as the seller declined to make any delivery

Page 148 U. S. 582

without receiving the contract price in full, he made it in order to obtain delivery, and with the distinct avowal that it was not due. Held that this was not a voluntary payment which could not be recovered back in whole or in part.

On December 10, 1886, the defendants in error commenced suit in the District Court of the County of Salt Lake, Utah Territory, to recover from the defendants, now plaintiffs in error, the sum of $14,110, for breach of a contract of sale. Defendants appeared and answered. A trial was had before a jury, and on November 14, 1888, a verdict was returned in favor of the plaintiffs for $6,631.63, upon which verdict judgment was duly entered. An appeal was taken to the supreme court of the territory, by which court the judgment was affirmed, and from that court the case has been brought here on error. The allegation in the complaint was that on July 17, 1886, the parties entered into a contract, of which the parts material to the questions presented are as follows:

"This agreement, made this seventeenth day of July, A.D. 1886, by and between Simon Lonergan and William Burke, of the City of Salt Lake, Territory of Utah, parties of the first part, and the Promontory Stock Ranch Company, a partnership composed of M. B. Buford, J. W. Taylor, and George Crocker, all of the State of California, parties of the second part, witnesseth:"

"Whereas said first parties are the owners of large herds of cattle now ranging on their ranches in the Counties of Oneida, in Idaho, and Box Elder, in Utah, and have contracted and agreed, as hereinafter set forth, to sell the same to said second parties, the exact number of said cattle being unknown, and whereas, said first parties have heretofore sold two thousand head of steers from said herds, one thousand head of which have been separated therefrom and delivered, and one thousand head thereof still remain to be delivered, and whereas, said second parties have agreed to purchase the said herds, excepting said undelivered one thousand head of steers, on the terms and conditions hereinafter set forth:"

"Now therefore the said parties do by these presents, in consideration of ten thousand dollars to them in hand paid,

Page 148 U. S. 583

the receipt whereof is hereby acknowledged, the same to be credited on the first payment, as hereinafter set forth, contract and agree to and with the said parties of the second part that they will sell, transfer, convey, and deliver to said second parties --"

"1. All of the possessory right which said first parties have heretofore held, enjoyed, and possessed of in and to any and all ranches or ranges in said County of Oneida, in Idaho, and in said County of Box Elder, Utah, with all water rights, fences, and improvements thereon or thereto belonging, and further agree that they, or either of them, will not hereafter herd, keep, or drive any cattle thereon, or in any way interfere with the exclusive right, possession, or occupation thereof by said second parties."

"2. That they will sell, transfer, and deliver to said second parties all of their said herds of cattle (excepting said reserved and undelivered one thousand head of steers) now on said ranges in said Counties of Oneida and Box Elder, said reserved one thousand head of steers to be by first parties separated from said herds, and driven off of said ranches, within ninety days from July 15, 1886."

"* * * *"

"The said second parties agree and hereby contract to and with said first parties to purchase the said properties from said first parties, and to pay therefor, as full consideration for the whole thereof, the sum of thirty dollars per head of cattle, delivered, in sight draft on San Francisco, California, to be promptly paid on presentation."

"And it is mutually agreed that as a basis of estimating the number of cattle sold, and the amount to be paid by said second parties, said first parties have already this year branded fifteen hundred calves, and shall continue to brand the calves from said herds until they shall have branded in all the number twenty-two hundred and fifty head, or until December 1, A.D. 1886, but shall brand no calves after that date, and shall make delivery of all said properties to said second parties so soon as said Lonergan and Burke shall have branded said twenty-two hundred and

Page 148 U. S. 584

fifty calves, or, in any event, said delivery shall be made not later than December 1, A.D. 1886."

"And it is agreed that said herds shall be estimated to contain three head of cattle for every calf so branded, or three times the number of calves branded this season, and prior to December 1, 1886, but in no event to exceed 2,250 calves, including the fifteen hundred head now branded."

"The said second parties agree to pay the said first parties, as full consideration for all of said properties, including said calves, a sum equal to thirty dollars per head of all cattle, the number being ascertained by the number of the calves branded as aforesaid, the first payment on fifteen hundred calves already branded representing 4,500 head of cattle, equal to $135,000, less the cash payment of $10,000 made at the date hereof, on August 1, 1886, on all calves branded over and above said fifteen hundred head; the third and last payment at the same rate, so soon as said first parties shall have finished their branding and shall have made delivery of the entire property hereby contracted to be sold."

It further stated that the 2,000 steers mentioned as reserved and excepted were intended and understood by all the parties to be steers of two years old and upward, and not otherwise. Full performance by the plaintiffs was alleged, and a failure on the part of defendants to deliver, among other things, 422 head of yearling steers. The answer denied that the 2,000 steers mentioned as reserved in the contract were understood and intended to be of two years old and upward, but, on the contrary, it was intended and understood by all the parties that yearling steers, as well as others, were included. The answer also denied the other allegations in the complaint, except as to the making of the contract, and as to that alleged full performance by the defendants. On the trial, the plaintiffs introduced this contract:

"Chicago, Illinois, June 29th, 1886"

"We have this day sold to William E. Hawkes, of the City of Bennington, State of Vermont, one thousand (1,000) head of steers, four hundred (400) two years old, four hundred and

Page 148 U. S. 585

fifty (450) three years old, and one hundred and fifty (150) four years old, branded [brand1] on the left side, and [brand2] on the left side. Said cattle are on our ranch in Box Elder County, Utah, and Oneida County, Idaho, and are part of a large herd. The sale is for the sum of twenty-five thousand dollars ($25,000) in cash, to be paid on delivery of the cattle, and delivery to be made on the 15th day of July, 1886."

"And whereas the said Hawkes has purchased the said cattle with the intention of transferring them to a corporation to be formed by him:"

"Now, in consideration of the premises, and one dollar to us in hand paid by the said Hawkes, we further agree to sell to such company as soon as the same is incorporated, and its securities are negotiated, and within not more than ninety days from the date hereof, and the said company shall then purchase from us, one thousand (1,000) additional head of steers, four hundred (400) two years old, four hundred and fifty (450) three years old, and one hundred and fifty (150) four years old, branded in the like manner as above specified, and being a part of the cattle now on our ranch as above described, for the sum of thirty-five thousand dollars, ($35,000,) delivery of the last-named one thousand (1,000) head to be made at Soda Springs, Idaho, and payment thereof to be made on delivery."

"[Signed] Lonergan & Burke"

"Wm. E. Hawkes"

They also offered the testimony of certain witnesses to the effect that Lonergan, one of the defendants, stated to one of the plaintiffs, in conversations prior to the execution of the contract sued on, that the steers which had been sold to Hawkes, and were to be excepted out of the sale to plaintiffs, were two years old and upward. All this testimony was objected to on the ground that it tended to contradict or vary the terms of the written agreement between the parties to the suit, and was incompetent, irrelevant, and immaterial. These objections were overruled, the testimony admitted, and exceptions taken.

Page 148 U. S. 586

On December 10, 1886, the very day on which this suit was commenced, Taylor, one of the plaintiffs, made the final payment to the defendants at the same time serving them with this protest:

"To S. J. Lonergan and Wm. Burke, Esqs.:"

"Gentlemen: You will please take notice that in payment to you, this date, of $27,000, as the balance of the purchase price of certain ranges and herds of cattle in pursuance of a contract made by us with you on July 17th, 1886, we do not pay the whole thereof voluntarily. From information possessed by us, we are induced to believe that the entire number of cattle and horses by the contract aforesaid contemplated to be delivered to us on the 1st day of December, A.D. 1886, cannot be, and is not, by you so delivered, i.e. that four hundred and twenty-two yearlings, forty cows, heifers, and steers, and two buggy horses, all of the value of $14,110, are not delivered. Now therefore, inasmuch as you decline to make any delivery, under your contract except upon the payment by us of the entire purchase price, and because we have already paid you a larger proportion thereof, to-wit, $175,500, we do hereby pay $14,110 of said $27,000 under protest, and with the distinct avowal that the same is not due you."

"Promontory Stock Ranch Co."

"By John W. Taylor"

"Salt Lake City, December 10th, 1886"

It was claimed by the defendants that notwithstanding this protest, the payment was voluntary on the part of the plaintiffs, and that therefore no money could be recovered back.

Page 148 U. S. 588

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