
    IVERSON et al. v. CARRINGTON et al.
    No. 3740.
    Decided April 14, 1922.
    (206 Pac. 707.)
    1. Trial — Issues Arising out of Contract for Feeding of Stock Held Improperly Withdrawn from Jury. In an action to recover compensation tor feeding and caring for cattle, in WUcl) defendants interposed a counterclaim for damage to the cattle by insufficient feeding, there being a conflict in the evidence as to whether plaintiffs fully complied with the contract, and there being evidence tending to show that defendants waived per■formance with respect to the feeding of hay to the cattle, it was error for the court to instruct the jury that the plaintiffs had admitted nonperformance of the contract,, and that there was no evidence of waiver by defendants.
    2. ANIMALS — RIGHT TO REIMBURSEMENT TOR FEED PURCHASED HELD Properly Submitted to Jury. Where plaintiffs agreed to care for and feed defendants’ cattle and to feed hay during certain parts of the year, whether plaintiffs were entitled to recover from defendants for certain corn and syrup fed to the cattle at defendants’ request when the cattle were found in an emaciated and starving condition held properly submitted to the jury.
    3. Animals — Contract to Feed Cattle Construed-as to Character or Feed. A contract by plaintiffs to feed defendants cattle on plaintiffs? land, known as Locomotive Springs, “with the class of hay as can be found on Locomotive Springs,” held not to. be construed as relieving the plaintiffs of the duty to feed the cattle hay, unless the hay in question was on plaintiffs’ premises.
    Appeal from District Court, First District, Box- Elder County; A. A. Law, Judge.
    Action by Alma Iverson and another against Calvin Car-rington and others. Judgment for plaintiffs in part and for defendants in part, and against defendants on their counterclaim, and both parties appeal.
    Reversed and remanded in part, and affirmed in part.
    
      Young & Davis, of Brigham City, for appellants.
    
      Henderson & Johnson, of Ogden, for respondents.
   CORFMAN, C. J.

This was an action brought by the plaintiffs to recover balances alleged to be due them for feeding the defendants' cattle. It is in substance alleged by the complaint, for a first canse of action, that on or abont November 19, 1919, the plaintiffs and the defendants entered into a written agreement whereby plaintiffs agreed to feed for the defendants 408 head of cattle at the rate of $2.50 per head per month for yearlings and $2.75 per head per month for all other cattle delivered during the months of December, 1919, and January, February, and March, 1920; that on or abont January 4, 1920, a second agreement was entered into between the parties, whereby plaintiffs were to feed the additional number of 80 head of cattle during the months of January, February, and March, 1920, for the sum of $3 per head per month for 35 head and $2 per head per month for the balance; that the said cattle were delivered to the plaintiffs for feeding under the provisions and according to the terms of said agreements respectively, and thereafter said cattle intermingled and were fed and eared for by the plaintiffs as one bunch or herd of cattle; that the 408 head of cattle were fed by plaintiffs from November 19, 1919, to January 4, 1920, when said additional number of 80 head were received, and thereafter the total number of 488 head were fed and cared for from January 4, 1920, until February 28, 1920, at which time defendants removed from plaintiffs’ possession 381 head; that plaintiffs, thereafter fed the remainder of said cattle, 107 head, until March 3, 1920, when, with defendants’ consent, plaintiffs removed 76 head, after which plaintiffs continued to feed the remainder of said cattle until March 10, 1920, at which time the remainder of the cattle were removed by defendants; that defendants became indebted to the plaintiffs, for the feeding of said cattle as aforesaid in the total sum of $3,753.10, no part of which has been paid except the sum of $2,588.50, leaving a balance due and unpaid of $1,164.50, for which amount plaintiffs prayed judgment, with interest and costs of suit. For a second cause of action it is alleged that plaintiffs furnished corn and syrup at the instance and request of defendants of the value of $205.40, in addition to the amount due under the terms of the agreements mentioned in the plaintiffs’ 'first cause of action; that defendants have not paid the plaintiffs said sum, for which, judgment was also prayed, with interest and costs.

• The answer of the defendants admitted the agreements mentioned in the complaint had been entered into for the feeding of their cattle upon the terms stated in the complaint and payment to the plaintiffs of the sum of $2,588.50 for the feeding of the cattle. It is then alleged that under said agreements plaintiffs were, to feed the cattle hay, which plaintiffs failed and neglected to do until January 8, 1920, but, to the contrary, pastured said cattle upon the very poorest of grass until January 3, 1920; that thereafter plaintiffs failed to feed sufficient .hay, by reason of all of which 150 head of said cattle died from lack of feed and from starvation, and the balance became poor and emaciated, so that defendants had to receive them from plaintiffs’ possession. As a further defense, and by way of a counterclaim, defendants affirmatively alleged substantially the same facts with respect to plaintiffs ’ failure and neglect to feed hay as pleaded in their answer, and that by reason of such failure and neglect they sustained damages in the sum of $10,000, for which judgment was prayed against the plaintiffs. ■ As to plaintiffs’ second cause of action, the defendants denied generally the allegations thereof.

Plaintiffs filed a reply to the answer and counterclaim, in effect denying that under the terms of the agreements entered into they were to feed any hay until the weather became cold and stormy, about January, 1920, and alleged that until said time the cattle were properly pastured and remained in good condition; that the losses sustained by defendants were not occasioned by the neglect or failure of the plaintiffs, but by reason of extreme cold weather; that defendants were advised and had knowledge that their cattle were being pastured and approved of plaintiffs ’ doing so lip to the time they were fed with hay.

Trial to a jury upon the issues thus framed by the pleadings resulted in verdicts as follows: On the first cause of action stated in plaintiffs’ complaint, by direction of the court, no cause of action; on plaintiffs’ second cause of action the sum. of $205.40, with interest; on defendants’ counterclaim, no cause of action. Judgments on the verdicts were entered accordingly. Plaintiffs moved for a new trial on the first cause of action, defendants for a new trial on plaintiffs’ second cause of action, and also upon their counterclaim for damages. Both motions were denied. All parties appeal.

Plaintiffs ’ appeal is predicated on alleged errors committed by the trial court with .respect to their first cause of action alone, in that the court refused to charge the jury as requested by them, in the giving of certain other instructions and in denying their motion for a new trial. Defendants assail certain instructions given by the trial court with respect to plaintiffs’ second cause of action, and also in failing to direct the jury to bring in a verdict against the plaintiffs on their counterclaim for damages.

The evidence in part shows that the plaintiffs were possessed of certain hay and pasture lands bordering on the shores of Great Salt Lake in Box Elder county. These lands are watered by natural springs, called “Locomotive Springs,” which arise in the vicinity of and flow over plaintiffs’ lands, upon1 which are growing numerous kinds of wild grasses. In the summer of 1919 a considerable portion of the grasses were cut and stacked for hay, and upon a part of- the lands the growth was not cut, but left standing. The hay cut and stacked was of an inferior quality. On the 19th day of November, 1919, after the defendants had examined the. kind of hay that had been cut and stacked upon the premises, a written contract was entered into between the parties whereby the plaintiffs undertook and agreed to “feed and care [for] as well as can consistently be expected with the class of hay as can be found on Locomotive Springs” 408 head of cattle at stipulated prices. Said contract also contained the provisions :

• “That the party of the first part [plaintiffs] accounts for all cattle received; that the party of the first part under this contract shall not he held responsible for conditions over which he has no control, death and disease, accidents from storm, etc.; * * * that all time before December 1, 1919, and after March 31, 1920, the party of the-second part agrees to pay for the pasturing and. herding” of the 408 head at a stipulated price.

January 4, 1920, tbe parties entered into a contract containing like provisions witb respect to an additional number of 80 bead of cattle to be fed and cared for at a stipulated price per bead per month. The plaintiffs received tbe first bunch of cattle, 408 bead, in November, 1919, and from that time until in the fore part of January, 1920, tbe cattle were pastured on tbe standing grasses without being fed any bay from tbe stacks. Shortly before tbe plaintiffs received tbe 80 bead of cattle in January they commenced feeding bay. After receiving tbe last-mentioned number in January tbe two bunches of cattle were cared for as one herd, and all tbe cattle were thenceforth fed witb tbe bay that bad been cut and stacked upon the plaintiffs’ lands. The evidence shows that about tbe time tbe second bunch of cattle was delivered to plaintiffs by tbe defendants they suggested to tbe plaintiffs that tbe cattle were not being fed enough bay, and that they “bad better take out another wagon so that we (plaintiffs) could give them more bay. ’ ’ Tbe evidence further shows that about this time some of tbe cattle were weakening. Wallace Ricks, one of tbe defendants, testified:

“I told them [plaintiff's] that my cattle looked pretty.had; that I would rather pay extra and get the feed out to them, com, or anything else, extra. My cattle had fallen off. I gave them $30.00 to send out the corn. The whole herd had lost flesh.”

The same witness testified:

“I was down the latter part of February. We just moved about 76. Left the remainder; the cows and the cattle that were too weak to move we left. They had a hard time getting out of the swamp. They would lie down, and then we would have to lift them up.”

■ Another witness testified to tbe same effect witb respect to tbe weakened condition of tbe cattle. During the month of January tbe cattle commenced to die in considerable numbers. In February defendants began removing cattle from plaintiffs’ possession from time to time, and continued to do so until March 10th, when all of the cattle remaining alive had been taken away to be fed and cared for elsewhere. Large numbers bad died while in plaintiffs’ possession, and many died after being taken away.

The evidence is in conflict as to what caused tbe heavy losses. Some of the witnesses attribute the losses to the fact that cattle “had been starved the forepart of the winter.” Bert Eliason, a witness in defendants’ behalf, who ovmed land and had.fed cattle in the vicinity where the defendants’ cattle were being fed and cared for, testified that when the cattle were received by plaintiffs they were “strong and hearty,” and that when they were taken away they were “awful poor.” This witness also attributed the heavy losses and the weakened condition of the cattle in part to their not being fed with hay earlier in the season. J. S. Showell, also a witness for the defendants, who had eared for cattle in the same vicinity or locality for 12 or 15 years last past, testified that the cattle v^ere in good condition when received by the plaintiffs, and that they were “extremely thin” when taken away. As to the cause of the cattle failing in strength he expressed it as his opinion:

“I think they were not put on feed soon enough. They were left out to pasture too long in the field.”

He also testified that if they had been put on hay and had been fed properly on the kind of hay plaintiffs had to feed them they would have been in better condition. There is also much evidence in the record tending to show that owing to the severe cold and weather conditions of the season' of 1919-20, many other cattle in the same locality where the cattle in question were fed became weakened and died.

"We have made no endeavor to set forth even in substance all the material evidence that appears in the record, but only so much thereof, as will show that there was some substantial evidence tending to support each and all of the issues raised by the complaint and answer, not only with respect to plaintiffs’ second cause of action and the defendants’ counterclaim, but also with respect to plaintiffs’ first cause of action. With respect to plaintiffs’ first cause of action the trial court directed the jury to return a verdict against them, no cause of action, apparently upon the theory that the plaintiffs had breached their contract in failing to feed the cattle hay as contemplated and agreed upon by the parties to the contracts. While it is an admitted fact that the first contract entered into between tbe parties was> not complied with, by reason of the plaintiffs’ failing to feed hay to the cattle before January, 1920, nevertheless, matters were pleaded by the plaintiffs, and there is some substantial evidence in the record tending to show that the defendants by their acts and conduct waived the feeding of hay to their cattle until in January, 1920, when the plaintiffs did commence to feed hay. Under our rules of procedure it is provided by Comp. Laws Utah 1917, § 6802, subd. 4, that—

“When the evidence is concluded the court shall instruct the jury in writing upon the law applicable to the case.” In re Hanson’s Will, 50 Utah, 207, 167 Pac. 256.

The trial court did not comply with the foregoing rule with respect to the issues raised by the pleadings in this case. Practically every material issue raised by the allegations of plaintiffs’ first cause of action and the answer and counterclaim was taken away from the jury by the following instruction, of which the plaintiffs complain:

“You ar© instructed * * * that the plaintiffs’ right to recover on their first cause of action is based upon the terms of the written contracts, and it is incumbent upon the plaintiffs as. a prerequisite to recovery to prove by a preponderance of the. evidence that they substantially performed their said contracts, or that the performance of the contracts had been waived by defendants, and in this connection you are further instructed that it is admitted by plaintiffs that said contracts, and in particular the contract dated November 19, 1919, was not performed, and there has been no evidence introduced in this case sufficient to justify a finding that defendants waived the failure to perform, and therefore the plaintiffs are not entitled to recover upon their first cause of action, set forth in plaintiffs’ complaint, and the same is withdrawn from the consideration of the jury, and you are directed to return a verdict in favor of the defendants and against the plaintiffs on said cause of action.”

As we have pointed out, in the trial of the case testimony was received tending to support the allegations of the plaintiffs’ first cause of action. Indeed the evidence shows that the issues raised by plaintiffs’ first cause of action and the defendants’ answer and counterclaim thereto were gone into most thoroughly. ' It follows that the giving of the foregoing instruction by the trial court withdrawing the matters testified to with respect to plaintiffs’ first alleged cause of action from tbe jury’s consideration was prejudicial error. Therefore tbe judgment of tbe district court entered upon tbe verdict with respect to said cause should be reversed upon that ground if upon none other.

Plaintiffs have assigned other alleged errors as grounds for reversal of tbe judgment with respect to their first cause of action. We need not consider them. What has been said with respect to the duty of the trial court at the conclusion of the evidence to charge upon all the material issues of the case applies to them.

Coming now to the questions raised by the defendants’ appeal: It is first contended by them that the trial court erred in charging the jury:

“If you find from the evidence that the plaintiffs purchased corn and syrup, at the instance and request of the defendants, or either of them, to be fed the same cattle, or any of them, and if you further find that defendants promised to pay for said corn and syrup, if any, then your verdict must be in favor of the plaintiffs and against the defendants upon the plaintiffs’, second cause of action for the amount of said corn and syrup so purchased and furnished, if any, not exceeding the sum of $205.40.”

Clearly, one of the issues raised by the pleadings in the ease was whether or not the plaintiffs should be permitted to recover the value of the corn and syrup fed to defendants’ cattle. There is substantial evidence in the record to sustain the finding or verdict of the jury that the corn and syrup were provided for the cattle by the plaintiffs at the instance and request of the defendant, and that defendants promised and agreed to pay for the same. Therefore the judgment entered upon that verdict of the jury should not be disturbed.

The defendants further complain of the following charge given by the court to the jury:

“It was also tbe duty of tbe plaintiffs during all tbe time tbe said cattle were in tbeir possession during the months of December, January, and February to feed and care for said cattle as well as they consistently and reasonably could with tbe class of bay they bad upon their premises at Locomotive Springs.”

The plaintiffs point out that the contracts between the plaintiffs and defendants witb regard to tbe care and feeding of tbe cattle provided that—

“The party of the' first part [plaintiffs] agrees to feed and care as well as can consistently be expected with'the class of hay as can he found on Locomotive Springs.”

Defendants contend, and we think rightfully, that tbe instruction as given by tbe court materiaEy departed from tbe express words and meaning of tbe contracts between tbe parties, by limiting tbe bay to be fed under tbe contract to that found on plaintiffs’ premises, and that defendants were prejudiced thereby. Tbe wording of the contracts should have' been correctly stated by tbe court. If then tbe facts disclosed by tbe evidence warrants tbe court may charge tbe jury as to what was contemplated by tbe parties in the use of tbe contract language.

Defendants also contend that tbe trial court erred in not instructing tbe jury to bring in a verdict for tbe defendants upon their counterclaim; there being an admitted failure to feed bay as called for by tbe contracts. It would seem that if tbe plaintiffs breached their contracts in that regard as tbe trial court held they did do, then tbe defendants were entitled " to recover on their counterclaim at least nominal damages, and tbe court should have so charged tbe jury.

Manifestly, under tbe pleadings and tbe evidence this case was not properly submitted to the jury for their consideration. Tbe court should have charged tbe jury witb respect to tbe questions raised by tbe plaintiffs’ first cause of action and the defendants’ answer and counterclaim thereto. In view of tbe fact that tbe court refused to permit tbe jury to pass upon tbe issues raised by tbe plaintiffs’ first cause of action, tbe jury may have arrived at tbe erroneous conception that tbe defendants should not be permitted to recover any damages sustained by them by reason of tbe alleged failure of tbe plaintiffs to properly care for and feed their cattle as provided in tbe contracts, and thus they may have totally disregarded tbe consideration of tbe counterclaim upon its merits. It is therefore ordered that tbe judgments entered upon tbe plaintiffs’ first cause of action, and tbe defendants’ answer and counterclaim be, and tbe same are hereby, reversed. As to the judgment entered against the defendants on plaintiffs’ second cause of action, that will stand affirmed. Let the cause be remanded to the district court of Bos Elder county, with, directions that the plaintiffs be granted a new trial upon their first cause of action, and that defendants be granted a new trial upon their answer and counterclaim thereto. Neither party to recover costs.

WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.  