The court below acted properly in ordering the consolidation and
trial together of an action of replevin and an action in contract,
the parties being the same in both, their rights depending upon the
same contract, and the testimony in each being pertinent in the
other.
It is competent for parties who have contracted in writing with
reference to personal property to make a subsequent verbal
agreement as a substitute for a part of the written contract.
When testimony is permitted to go to the jury without any
objection, tending to show that changes had been made orally in a
written contract between the parties, which were substituted by
them in the place of the written contract, it is too late to
contend that the jury cannot find, in case it is so proved, that
the rights of the parties, as defined in the written contract, have
been varied by the verbal agreement.
The burden of proof to establish it is on the party who sets up
an oral change in a written agreement, and in determining it the
reasons and motives for the alleged change may be shown.
In an agreement to keep, feed, and care for a quantity of
cattle, it was agreed that the cattle should be of a certain
average, of which fact A was to be the judge.
Held that
A's action in this respect was not conclusive on the defendant if
it was shown that he had been deceived by the plaintiff, in not
putting him in full possession of knowledge possessed by him, and
necessary for the proper discharge of A's duty.
In several other respects, referred to by the Court in detail,
it is found that there was no error in the charge of the court
below.
Page 123 U. S. 573
The plaintiff below sued out these writs of error. The case is
stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
These are separate actions brought by the same plaintiffs
against the same defendant in the Circuit Court of the United
States for the Western District of Missouri. The first was an
action of replevin, under which plaintiffs got possession of 1,232
head of cattle, and the second was an action to recover damages for
a failure on the part of defendant to fulfill a contract of
agistment with regard to the same cattle. As the rights of the
parties depended upon the same contract, and as the testimony in
each case was pertinent in the other, the court very properly
ordered their consolidation and trial together before the same
jury. The testimony submitted to the jury on both sides of the
controversy is embodied in a single bill of exceptions, under the
introductory phrase that each party offered testimony tending to
prove such and such facts. This bill of exceptions is very
voluminous, consisting of a great variety of evidence, running
through twenty-eight pages of printed matter, and to none of it
does there appear to have been any objection offered by either
party. The questions presented in the record are exclusively upon
the charge of the judge to the jury, on exceptions taken by the
plaintiffs below, who are also plaintiffs here, and to the refusal
of the court to grant such instructions as the plaintiffs' counsel
prayed for. A verdict was rendered for the defendant holding that
he was entitled to the return of the property replevied from him or
to the sum of $23,835.12, which was found by the jury to be the
value of his interest in the property. In regard to the other suit,
the verdict of the jury was simply for the defendant.
Page 123 U. S. 574
Judgments were rendered in accordance with these verdicts, to
which the present writs of error are prosecuted.
It seems from the evidence that the plaintiffs, under the
partnership style of J. Teal & Co., were owners of about 3,000
head of cattle, which they had driven across the plains from Oregon
to a shipping point on the Union Pacific Railroad, called "Rock
Creek Station," in Wyoming Territory. These cattle were shipped
from this point to Council Bluffs, in the State of Iowa, between
the 14th day of October and the 10th day of November, 1880. On the
3d day of November of that year, Teal & Co. entered into a
written contract with John S. Bilby, of Nodaway County, Missouri,
by which Bilby agreed to keep, feed, and care for 1,500 of these
cattle until December 1, 1881. By this instrument, he agreed that
he would so feed and care for them that they would increase in
weight 450 pounds each, on an average, for which the plaintiffs
were to pay him, on their delivery to them at the rate of five
cents per pound for such increase.
It also appears that before the terms of this agreement were
decided upon, one lot of about 200 cattle had arrived at Council
Bluffs, and had been seen by Bilby. It was a part of the agreement
that the remainder, as they arrived, should be average lots with
those that Bilby had seen, of which fact Mr. Bass, of the firm of
Rosenbaum, Bass & Co., who resided at Council Bluffs, was to be
the judge. The expense of transporting the cattle to Dawsonville,
Missouri, where Mr. Bilby resided, was to be paid by plaintiffs,
but if Mr. Bilby should pay any of that expense, he was to be
repaid, with ten percent interest upon his money on final
settlement.
There is also evidence to show that Mr. Bilby was a man of
means, owning extensive lands in the neighborhood of Dawsonville
and accustomed to the business of feeding cattle, and the agreement
was that the cattle should be weighed at Dawsonville, or the
nearest scales thereto, upon their arrival, under circumstances
minutely provided for, and that Bilby contracted
"to take the cattle and winter them well on hay, straw, and
stalk fields until grass comes; to be kept in enclosed pastures on
good grass until the 15th of August, 1881, after
Page 123 U. S. 575
which date, on each and every day, they shall be fed all the
corn they will eat until delivered to J. Teal & Company, and
that the cattle were to be redelivered to the plaintiffs between
the 15th day of October and the 1st day of December, 1881, by
giving ten days' notice. Bilby was also to be responsible for all
cattle lost, strayed, or stolen, and for any dying through his
neglect or carelessness, but if any died through causes which were
unavoidable, the loss of such cattle was to be borne by Teal &
Co., and the loss of the feed by Bilby. Another provision, to which
some importance is attached, is in the following language: 'If any
steers die, John S. Bilby shall preserve the hides as evidence of
death, and the ears if there are any earmarks.'"
It is agreed that 268 of these cattle were not recovered by
plaintiffs under the writ of replevin, nor were they tendered by
Bilby under the tender which he sets up in his answer; nor did the
weight of the cattle at the time Bilby was ready to deliver them,
or offered to deliver them, or at the time they were replevied,
come up to that which was required to make the increase of 450
pounds each on an average. It is on the ground of this failure to
bring the cattle up to the contract weight, alleging that it was
the fault of Bilby in not giving sufficient care and attention to
them as well as want of proper feed according to the contract, by
reason of which a part of the 268 died and were lost, that the
plaintiffs assume that they have a right to recover possession of
the property without making any compensation to Bilby for his
services.
A large amount of testimony was submitted to the jury on both
sides with regard to this question of proper feeding, care, and
attention, without objection, apparently, by either party, as well
as instructions asked of the court to the jury upon these subjects
and the consequences of the supposed failure on the part of Bilby
to comply with his contract. The exceptions taken to the general
charge of the judge are also numerous, and many of them too
unimportant to receive special notice at our hands.
A principal question, and the most important one in the
Page 123 U. S. 576
case, arises out of the fact that Bilby gave testimony of a
subsequent oral agreement changing very materially the terms of the
written contract. The bill of exceptions which relates to the
evidence introduced on this subject reads as follows:
"The defendant introduced evidence tending to show that the
appearance of the cattle when they were delivered to him by the
plaintiffs would not disclose the treatment they had received
previously, and that it required time to develop the evil effects
of such treatment; that although the cattle might appear to be very
thin and weak, yet it would not be apparent that they were
diseased; on the contrary, experienced cattlemen might well suppose
that they would, upon the treatment provided for in the contract,
soon recover their flesh and strength."
"He also introduced testimony tending to show not only the death
of two hundred and sixty-eight of the cattle as aforesaid, but that
as to many of the others that survived the winter of 1880 and 1881,
although they were fed upon corn, all they could eat during the
winter, they always presented a scabby appearance and did not
thrive from their food, and that when the spring came, they were
placed upon grass. They did not shed their hair, but were, in the
language of a number of the witnesses, 'stuck cattle.'"
"And that upon an examination of the cattle, it was considered
by said Coleman and defendant that the cattle could not be wintered
on hay, straw, and stalk-fields, and it was, a few days thereafter,
finally agreed upon between Coleman and defendant that defendant
should let the cattle into corn, and whatever time that they went
into corn that winter should be deducted off of the corn feed next
year at the end of the next grain feeding, and that defendant
should also be released from the stipulation of the written
contract requiring him to increase the average weight of the cattle
four hundred and fifty pounds per head."
While this testimony does not seem to have been objected to at
the time it was offered and permitted to go to the jury, the
counsel of plaintiffs in error, in several prayers for instructions
to the jury and in objections made to what the court said
Page 123 U. S. 577
to the jury, set forth the proposition that, this being an
attempt to substitute a verbal contract or change of contract for a
written one, it must be made clear that so far as it changed the
obligation of Bilby, it was made upon a good consideration, and
they in various ways object to the rights of the parties being
governed by this supposed change in the contract. It is an answer
to a very large amount of what is said on this subject that the
testimony in regard to it was permitted to go to the jury, as given
by Bilby on the stand. Coleman, one of the plaintiffs, also
testified in regard to this, and denied that the agreement was as
stated by Bilby, and a third witness was introduced on this
subject, who was present at the conversations in which the change
in the agreement is said to have been made. The whole testimony
upon this subject was therefore before the jury without
objection.
It further appears that Coleman, whose interest in the cattle
was as large as any of the plaintiffs, substantially remained with
them during the whole period from the time they were delivered to
Bilby until their replevin. Part of this time he was at Bilby's
house, and the remainder somewhere in the neighborhood, giving his
attention closely to the cattle, as one of the plaintiffs, who were
the real owners.
It is also manifest from the testimony offered that the cattle
were not in good condition to go through the winter without other
food than the hay, straw, and stalk-fields, which was all that
Bilby was bound to furnish them, until grass came in the spring,
but that some other kind of food was necessary to prepare them for
this. Of this Coleman, who was present superintending them, and had
a right to control the matter, was the best judge and the most
interested. It must also have been apparent to Bilby that if the
cattle entered upon the grass in the spring in an enfeebled
condition or if many of them died during the winter, he would not
be able to return them in October or December with an average
increase of 450 pounds according to the contract. It was therefore
to the mutual interest of the parties to make some different
arrangements by which Bilby should furnish the cattle more
nutritious food during the autumn and winter and that he should
Page 123 U. S. 578
also, in consideration of that change, be relieved of his
obligation to bring them up to an average increase of 450
pounds.
It is hardly pretended by counsel for plaintiffs that it was not
competent, after the written contract was made and signed by the
parties, for them to make another verbal contract in regard to some
parts of it, which to that extent should be a substitute for the
first one. There is nothing in the nature of the contract itself
requiring it to be in writing, nor is there any principle making it
necessary that the new one should be reduced to writing because the
first was written. 1 Greenleaf on Evidence ยง 303;
Gross v.
Nugent, 5 B. & Ad. 58;
Lattimore v. Harsen, 14
Johns. 330;
Munroe v. Perkins, 9 Pick. 298.
What the judge said to the jury on the subject of the
modification of the contract is in substance as follows:
"hat it was set up by Bilby, and he was bound to prove it; that
the written contract must prevail unless a change or modification
of its terms is proved to your satisfaction; you should inquire
whether there was a reason or necessity for the change; the parties
alike interested in preserving the cattle were upon the ground; the
cattle were dying in large numbers from some cause; would a change
of food suggest itself to meet the contingency? If so, there would
be a reason and a motive for that change."
He then recites what Bilby says about the contract, and
Coleman's denial of it, and that an unimpeached witness was called
by Bilby to whom Bilby had repeated the agreement in the presence
of Coleman; that a number of witnesses testify the cattle were put
upon corn about the time that the change was claimed to have been
made in the contract, and other testimony was given of the acts,
conversations, and admissions of the parties, both for and against
the change. From all this, he says, you must determine whether
there was any change, and if you find that there was, what it was;
if you find, however, that there was no modification or change,
then the written contract remained in full force.
We are of opinion that this charge, the substance of which only
is given by us, fairly placed before the jury the law which
governed the proof and effect of that contract in the case, and
that no other instructions upon that subject were necessary to
Page 123 U. S. 579
enable them to arrive at a just verdict so far as that was
affected by the supposed change of contract.
Another error is alleged in regard to the charge of the court,
and its refusal to grant prayers for instructions by the plaintiff
relative to the conclusiveness of Bass' action in passing upon the
cattle as they arrived at Council Bluffs, as being average lots
with the trainload which had already arrived, and been seen by Mr.
Bilby. A portion of the testimony which we have already cited
tended to show that when the cattle were delivered to Bilby by the
plaintiffs, their appearance would not disclose the bad treatment
they had previously received, but that it required time to develop
the evil effects of such treatment. Much other testimony was
introduced on the same subject tending to show that Bass was misled
as to the real condition of the cattle when he inspected them, and
also that he was influenced by partiality toward plaintiffs, who
employed him not only in regard to the cattle now in controversy
but other cattle as a broker or agent.
To the reception or all this testimony there is no exception,
and it affords sufficient reason, in our opinion, why the court
should not have charged peremptorily, as requested by plaintiffs,
that Bass' examination of these cattle and passing them was
conclusive that they were in proper condition, and came up to the
requirements of the contract. We think it was a question for the
jury, under all the circumstances, to decide whether they were
equal to the lot first examined by Bilby. On that subject, the
judge said to the jury:
"It is only in case Bass was himself deceived by plaintiffs in
not putting him (Bass) in full possession of the knowledge
possessed by them, and necessary for proper discharge of his
(Bass') duties as arbitrator, that you can go behind Bass' acts.
Then, if the cattle of the Teal herd were infected by a disease
incurred through careless handling, want of sufficient or proper
food or water, and such disease could not be discovered by a
careful examination, which Bass is presumed to have made, in such a
case the plaintiffs were bound, if they knew of such disease, to
disclose it to Bass or Bilby, and their failure to do so was a
fraud upon Bilby, and if damages have resulted to him (Bilby) in
consequence, he is entitled to recover them in this action. "
Page 123 U. S. 580
We see no objection to this charge, which is the one complained
of by plaintiffs in error.
A third question, to which some importance is attached, arises
out of the language of the contract and the action of Bilby under
it in regard to the hides of the cattle which should die while they
were under his control. This language, which immediately succeeds
the agreement as to the responsibility for cattle lost, strayed, or
stolen, or dying through the neglect or carelessness of Bilby, is
as follows: "If any steers shall die, John S. Bilby shall preserve
the hides as evidence of death, and the ears, if there are any
ear-marks." Of the 268 steers not on hand at the time Bilby
proposed to deliver the remainder of the cattle to the plaintiffs,
the hides were not produced. It is insisted by plaintiffs that the
failure to produce these hides makes him responsible for the value
of the steers. Evidence, however, was offered by Bilby tending to
show that during the winter in which these cattle died, he had
produced the hides to Coleman, counted them to him, and requested
him to accept the delivery of them. There was also testimony to
prove that during the succeeding summer, the hides decayed and
became offensive, and could not be produced at the time the cattle
were to be delivered.
The question of these hides is considered in two aspects by the
court in its charge to the jury, and in both we think it is justly
treated. The first charge, which related to the evidence of the
hides as tending to show the loss of the cattle which Bilby was
otherwise bound to account for, is in the following language:
"Bilby, under the written contract, was to preserve the hides of
the cattle which died and the ears of any which had ear-marks.
Under this provision, Bilby was bound to preserve the hides of all
the cattle which died and, unless he has done so, he is bound to
account for the whole of the 1,500 cattle, less such as he has
preserved the hides of, or the preservation of them was agreed to
be waived."
"There is testimony showing the number of hides preserved by
Bilby, and as to an agreement with plaintiff Coleman waiving the
preserving of some of them. If the whole of
Page 123 U. S. 581
the steers which are claimed to have died have thus been
accounted for to your satisfaction, Bilby cannot be held
responsible, provided they all died through unavoidable causes, and
not through the neglect or carelessness of Bilby, as already
instructed. The offer to count the hides claimed by Bilby to have
been made to Coleman, if made as claimed, and the count actually
made as testified to, if satisfactorily proven, may be taken by you
as showing that Bilby had the number of hides claimed. There are no
provisions in the contract where the hides of cattle which had died
should be counted, and the reasonable construction thereupon is
that the hides preserved should be counted at the time, and with a
view of making the hides themselves available for use or sale."
In charging the jury in reference to the damages which the
plaintiffs might recover, he afterwards said:
"Under the written contract, the plaintiffs are entitled to the
hides of the cattle which unavoidably died. Unless you find that a
tender of these was made by defendant to plaintiffs, in which
latter case the defendant would not be liable for them, there is no
proof before you as to the value of the hides, and, in order to
recover their value, the plaintiffs would have to show it. The
hides seem to be out of the question even if defendant's tender was
invalid."
It is seriously urged in argument by counsel that this latter
charge concerning the value of the hides was misleading as tending
to divert the jury from the consideration of the failure to produce
the hides as evidence of the death and loss of the cattle, and
exempting Bilby from responsibility for these cattle. But it is too
clear for argument that in that part of the charge first cited, he
points their attention to that aspect of the failure to produce the
hides, and to the considerations which should govern the jury in
that respect, in charging Bilby, or in releasing him from
responsibility for their loss, while in the second and later part
of the charge he is considering the mere moneyed value of the
hides, and charges the jury that the plaintiffs cannot recover for
that because they have made no proof of such value.
While there are other assignments of error that have been
Page 123 U. S. 582
examined by us, we do not perceive that any of them is well
founded, nor do we think that they are worthy of any extended
inquiry. As these to which we have adverted are the most important,
and as we see no error in what the court charged or refused to
charge the jury on these subjects, and as we have already said
there is no exception to the introduction of testimony, we see no
error in the record, and the judgment of the court below is in each
case
Affirmed.