In this case, the judgment of the Supreme Court of the Territory
of Oklahoma involving contract rights is affirmed.
The opinion of the Supreme Court of the territory followed to
the effect that the facts stated constituted duress within the
meaning of the territorial statute
Stating only part of a statutory definition of duress in the
charge to the jury held not reversible error, it not appearing that
the defendant was hurt thereby.
18 Okl. 168 affirmed.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error brought by the executors of Robert M.
Snyder to reverse a judgment upon a written contract in favor of
one Stribling, assigned by him to the defendant in error,
Rosenbaum. 18 Okl. 168. The contract was dated September 1, 1900,
and purported to be a sale by Stribling of 12,700 head of steer
cattle, then in pasture near Gray Horse, Oklahoma, of which 12,500
were
Page 215 U. S. 262
to be counted out to the purchaser, with particulars as to age.
Also of from 3,200 to 3,500 acres of corn, 1,400 acres of cane, and
about 5,000 acres of hay, all near the same place. Also of certain
horses, mules, wagons, and ranch outfit employed by Stribling about
the said cattle. By a later clause, the farms where the fodder was
were specified, and it was added that the exact acreage was not
guaranteed. The agreed price was $500,000, to be paid first, by the
transfer to Stribling of a ranch in Arizona, with the herd and
outfit thereon at the valuation of $150,000; next, by the
assumption of an encumbrance of $240,000 on 10,500 of the cattle
sold; "the balance . . . to be paid . . . or accounted for
satisfactorily to said Stribling within ___ days of the signing of
this instrument." It was agreed that 10,500 of the cattle were free
from encumbrances except the $240,000 just mentioned, and that, if
there was any encumbrance of the remaining 2,000, such encumbrance
should be deducted from the purchase price. "Said cattle to be
counted within fifteen days." Both parties to the contract were
experienced men.
Stribling alleged performance of the contract on his part and a
breach by Snyder in not conveying his Arizona ranch and in not
accounting for a cash balance of $5,200. The answer set up a
document of October 1, 1900, signed by Snyder and Stribling and
addressed to a third party, as a supplemental contract; denied
performance of this or the original agreement by Stribling, stating
various details of failure, and alleged fraud. The replication
averred that, to secure an extension of time for the payment of the
mortgage on the cattle, referred to in the original contract,
Stribling and Snyder, on September 5, made an agreement with the
holder by one part of which Snyder agreed to market enough of the
cattle to pay the notes that were overdue, and by which he also
bound himself to pay the other mortgage notes as they fell due. The
replication continued that, on October 1, 1900, Stribling had
delivered the cattle and other property, and
Page 215 U. S. 263
that Snyder, being in possession of them, told Stribling that,
unless he signed the document set up in the answer, he would not
pay for the cattle or pay the mortgage debt or release the cattle;
that both parties understood that this threat, if carried out,
would lead to an immediate foreclosure and Stribling's ruin, and
that, in those circumstances, characterized as duress, Stribling
signed.
There was a trial, and the jury found for the plaintiff. It made
in addition a very great number of special findings establishing,
subject to any question of law that may have been reserved, much
more than was necessary to support the verdict. It found the
following facts among others: in pursuance of the September
contract, 12,391 head of cattle were counted out to the purchaser,
and the counting of the rest of the 12,500 was stopped by the
purchaser's agent, he being satisfied and there being enough cattle
in sight to make up the total. After the count, on or about
September 26, 1900, the purchaser took possession, and Stribling
then ceased to exercise control over the property. This included
12,500 head of cattle, the horses, mules, wagons, harness,
pastures, camp outfit, and such feed as was there. Stribling asked
Snyder for a settlement, and Snyder made no objection to the
correctness of the count or to the representations as to the
acreage of feed or to Stribling's performance otherwise, but
nevertheless refused to do his part. He sold the cattle again by a
transaction which it is not necessary to trace, and the
negotiations concerning which were not known to Stribling at the
time of Snyder's threats mentioned in the replication and of the
signing of the document of October 1. The threats alleged are found
to have been made, and to have induced Stribling to sign, without
other consideration. At this time, the value of the cattle was
going down, and that of the Arizona property was going up -- facts
that may partly account for Snyder's conduct. It is found that he
wanted to avoid the September contract, and to get the cattle by
merely discharging the liens. But the parties did not carry out
the
Page 215 U. S. 264
provisions of the October document, and upon this finding and
the finding as to the pressure under which it was executed, it is
unnecessary to state its provisions. They were more onerous to
Stribling in several respects, requiring a further count, and
forfeiting the Arizona property if the full number was not turned
over and payment made for any deficiency within five days of the
count. All fraud on Stribling's part is negatived, and the upshot
of the whole matter is that he performed his contract in every
respect except that there was not so much fodder as was supposed,
and for that the jury made an allowance of $9,000.
The argument for the plaintiffs in error discusses the evidence
at great length. But we shall deal only and very briefly with the
rulings that seem to us to require notice. It is enough to say at
the outset that there was some evidence to support the special
findings that we have mentioned. But it is urged that, this being a
suit upon the contract, if it was not performed to the letter, the
plaintiff cannot recover. The judge instructed the jury that a
contract of this kind, for the delivery of a certain number of
cattle, is severable, and that, if the whole number of cattle, or
the full number of acres of feed, were not delivered, still the
plaintiff could recover the contract price, less an allowance for
the damage occasioned by the failure. This is assigned as error. It
is unnecessary to consider whether the construction of the contract
was too liberal in favor of the plaintiff or whether it embodied
the understanding upon which such dealings take place. The jury
found that all the cattle were delivered. As to the deficiency in
the acreage of fodder, the contract stated that the precise amount
was not guaranteed, and the jury found that Snyder was acting on
his own inspection. The deficiency did not go to the root of the
contract. Furthermore, if, after the parties have had a full trial,
and after such specific findings as were made, any amendment were
necessary, which we are far from intimating, no doubt it would be
allowed. The defendant suffered no
Page 215 U. S. 265
possible surprise.
See also Wilson's Stats.Oklahoma,
1903, § 4344.
It is objected further that the other cattle, above the 10,500
mentioned in the contract as mortgaged, and the fodder, were
subject to liens for about $110,000. But this possibility was
contemplated by the contract, the liens were satisfied out of the
purchase price, and no harm was done. Finally, it is said that the
delivery was not made within fifteen days. But, by statute, time is
not of the essence of a contract "unless, by its terms, expressly
so provided." Wilson. Stats. 1903, § 809. The delay was not the
fault of Stribling, but was due to Snyder and his agents. The
cattle were accepted without objection on that ground, and if the
delay could have been complained of under the circumstances,
performance
ad diem was waived.
The other principal defense and the ground of counterclaim
relied upon was the alleged contract of October 1. As the validity
of this contract was denied and the execution of it said to have
been abandoned, of course, the judge was right in refusing
instructions that assumed it to be in force. But complaint is made
of an instruction to the jury in the language of the statutes as to
duress and undue influence. Probably through a mechanical slip,
only a part of the statute as to duress was recited, so that
fraudulent confinement of the person seemed to be stated as an
exhaustive definition. But this did not hurt the defendant if, for
no other reason, because there was no pretense of duress in that
sense. The judge then went on to quote the definition of one form
of undue influence as "taking a grossly oppressive and unfair
advantage of another's necessities or distress." Wilson's, Stats.
1903, § 746. It is objected that undue influence was not pleaded.
But the facts were pleaded, and were found by the jury in like
form. We should assume that those facts amounted to undue influence
within the meaning of the Oklahoma statutes until the supreme court
of the state says otherwise. But it is said that they do not amount
to duress,
Page 215 U. S. 266
and therefore an instruction should have been given, as asked,
that there was no evidence of duress. We see no reason for not
following the opinion of the territorial court that the facts also
constituted duress within the meaning of the statute.
See
Silsbee v. Webber, 171 Mass. 378. But it does not seem to
matter what they are called if they are found to have existed.
Furthermore, we see no ground on which we can go behind the finding
that neither side carried out the alleged October contract. There
was some evidence to that effect, and we are not concerned with its
weight. We do not think it necessary to mention all the points that
we have examined. Upon the whole case, we are of opinion that no
error of law is disclosed that entitles the plaintiffs in error to
a new trial.
Judgment affirmed.