Tranel v. Gilkey

Justice McINTYRE

delivered the opinion of the court.

Eloise S. Gilkey, individually and as Executrix of the Estate of S. A. Gilkey, her deceased husband, initiated an action in re-plevin to obtain possession of certain Char-oláis cattle which were owned by her and in possession of Gayle Potter, defendant. After recovering possession of the cattle, the plaintiff instituted suit against Ned N. Tranel and Gayle Potter for an accounting of cattle lost by them, which cattle had been delivered to Tranel pursuant to a written agreement between Tranel and the Gilkeys. In her suit, Mrs. Gilkey asked for delivery to her of all registration papers on the cattle and for damages in the sum of $9,103.00 caused by Potter’s cattle eating the 1969 grass crop on the Gilkey ranch.

Potter counterclaimed against Mrs. Gilk-ey for $63,260.00, as damages sustained by him in caring for the Gilkey cattle and for breach of contract. He alleged that he and the Gilkeys had entered into an oral contract concerning the possession and care of the Gilkey cattle.

Potter also cross-claimed against defendant Tranel for breach of contract. Tranel had entered into an agreement with Potter for a livestock operation, whereby he sublet Gilkey lands to Potter, without the knowledge or approval of the Gilkeys. It was warranted to Potter that Tranel had a right to enter into such agreement, and Tranel agreed to hold Potter harmless from any and all liability which might arise as a result of Tranel losing his rights in the Gilkey lands. Potter sought damages against Tranel for $40,000.00 for breach of contract.

Facts in the case and the basis for the trial court’s conclusions are set forth quite fully in a statement of Findings of Fact and Conclusions of Law by the trial court. We think the case will be best understood by setting out the trial court’s Findings of Fact and Conclusions of Law. They are as follows:

“FINDINGS OF FACT”

. “1.

On September 30, 1968, S. A. Gilkey and Eloise S. Gilkey and Defendant Tranel entered into a Livestock Agreement which was received in evidence as Plaintiff’s Exhibit 1.

“2.

That S. A. Gilkey died February 2, 1970 and Plaintiff is the duly appointed, qualified, and acting Executrix of the estate of S. A. Gilkey and is also the surviving wife of S. A. Gilkey. That Defendant Potter did file a Creditor’s Claim in the administration of such estate for services rendered in caring for the Gilkey cattle.

“3.

That pursuant to said Livestock Agreement, Plaintiff and her husband delivered to Ned N. Tranel the following number and classes of registered Charo-láis cattle, then owned by both the Plaintiff and her husband, S. A. Gilkey, to-wit:

6 registered herd bulls

137 registered cows

3 non-registered cows

35 registered heifers

53 heifer calves, of which 30 could be registered

55 steer calves

1 yearling steer

being a total of 289 head of Charoláis cattle.

“4.

That Defendant Tranel negligently failed to properly care for and feed these cattle during the winter of 1968— 1969, and in March 1969 he abandoned said Livestock Agreement and the cattle without the knowledge or consent of Plaintiff or her husband, and delivered the Gilkey cattle to the Defendant, Gayle Potter.

“5.

That 111 of the above mentioned cattle died of neglect and starvation during the winter of 1968 and 1969, these cattle being of the following classes: 61 cows, 48 calves and 2 herd bulls.

“6.

That the market value of the cattle lost was: the average market value of the 61 cows was $351.85 each which totals $21,462.85; the average market value of the 48 calves was $200 each which totals $9,600; and the bulls were of a market value of $500 and $800 respectively, which totals $1,300. That the total loss sustained by the Plaintiff from the loss of these particular cattle was $32,362.85.

“7.

That during the spring of 1969 an additional 20 cows, 3 calves, and 1 steer owned by the Gilkeys were lost in a spring storm while in the possession of Defendant, Gayle Potter, but the loss of these cattle occurred in a blizzard on or about April 30, 1969 and was not the result of Potter’s negligence.

“8.

That on March 19, 1969, the Defendant Tranel and the Defendant Potter entered into a Lease Agreement whereby Potter was allowed to graze his cattle on the Plaintiff’s ranch. That the Plaintiff was not a party to this Agreement and did not agree to its terms. In said Agreement, Defendant Tranel warranted to Defendant Potter that he had the legal right to lease said lands of the Gilkeys to Potter and agreed to hold Potter harmless from any liability which might result from any claim of the Gilk-eys.

“9.

That the Defendant Potter grazed cattle on the Gilkey ranch in 1969 and did not pay for the use of such pasture. The reasonable value of Plaintiff’s grass crop used by Potter in 1969 was $9,103.

“10.

That Defendant Potter refused to return Plaintiff’s cattle on demand. That after the filing of the original Complaint in this action, Defendant Potter delivered the following Charoláis cattle to the Plaintiff on the dates and in the numbers indicated, to-wit: November 19, 1970 — 19 cows and 14 calves; November 22, 1970 — 83 cows, 2 heifers, and 48 calves; November 24, 1970 — 12 heifers, 6 yearling bulls, and 3 herd bulls; for a total of 187 head of cattle.

“11.

That Defendant Potter has refused to produce and deliver the registration papers on the Gilkey cattle upon Plaintiff’s demand.

“12.

That no firm agreement or contract, either written or oral, was ever reached between the Plaintiffs and Defendant Potter concerning Potter’s possession of the Gilkey cattle.

“13.

That the reasonable value of caring for the Gilkey cattle by Potter was the sum of $11,630.”

“CONCLUSIONS OF LAW”

“1.

That the Defendant Tranel had a duty to care for the Gilkey’s cattle which had been delivered to him in good husband-like manner and he failed to do so. As a result of his neglect, 61 Charoláis cows, 48 Charoláis calves and 2 bulls with a value of $32,362.85 died and Plaintiff Eloise S. Gilkey should have Judgment and recover such amount from the Defendant Ned Tranel.

“2.

That Defendant Potter took possession of the Gilkey cattle on or about April 1, 1969 and cared for them until November 1, 1970 and while he and the Plaintiff never entered into an Agreement as to the amount of compensation for the running of her cattle, the Defendant Potter is entitled to be paid a reasonable sum therefor which is the amount of $11,630.

“3.

That in the summer of 1969, Defendant Potter grazed the Gilkey Powder River ranch lands under an Agreement between Tranel and Potter and the Plaintiff Gilkey is entitled to be paid the reasonable value therefor which is the sum of $9,103, which amount Plaintiff may recover from the Defendant Potter for his care of the Gilkey cattle. That in the event Defendant Tranel is liable unto the Defendant Potter for the sum of $9,103 for the breach of warranty made by Tranel that he had the right to lease said grass unto the Defendant Potter.” ¹

Based upon the Court’s Findings of Fact and Conclusions of Law, judgment was entered reciting the following:

“IT IS, THEREFORE, HEREBY ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff have and recover Judgment on her Amended Complaint against the Defendant, Ned N. Tranel, for the sum of $32,362.85 for the loss of her cattle, and against the Defendant, Ned N. Tranel and Gayle Potter, jointly and severally, for the sum of $9,103.00 for the pasturage of her grass in 1969.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Defendant have and recover Judgment on his Counterclaim against the Plaintiff, Eloise S. Gilkey, the sum of $2,527.00, being the difference between the amount due and owing on said Counterclaim for the care of the Plaintiff’s cattle, and the amount ordered to be paid unto the Plaintiff for the use of her pasturage.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that Defendant Gayle Potter on his Cross-Claim with the Defendant, Ned N. Tranel have and recover Judgment against said Defendant, Ned N. Tranel, the sum of $9,103.00.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that all Counterclaims and Cross Claims of the Defendants be dismissed except for the relief herein granted.

“IT IS, FURTHER ORDERED, ADJUDGED AND DECREED by the Court that all costs accrued herein be paid by the Defendant, Ned Tranel.”

There seems to be uncontradicted testimony that 34 cows (rather than 61) died from starvation and neglect in the winter of 1968-1969, while 62 calves (rather than 48) died from neglect and other causes. This means Tranel should be charged with the loss of 34 cows at the price of $351.85 each,' instead of 61 cows at that price. It also means Tranel should be charged with the loss of 62 calves at $200.-00 each, instead of 48 calves at that price.

Accordingly, the judgment in favor of Mrs. Gilkey and against Tranel, for the loss of cows and calves, should be reconsidered. With respect to an allowance for Potter’s care of the Gilkey cattle, there was no express contract. Parties agree, however, that Potter should be given credit for the reasonable value of his services in rendering such care. The trial court, in Finding 13, held the reasonable value of caring- for the Gilkey cattle by Potter was the sum of $11,630.

There simply was no testimony or evidence in the case which would justify a finding by the trial court that $11,630 was the reasonable value of Potter’s services. Uncontradicted evidence indicates more should be allowed and we remand the case to the district court with instructions to determine, with or without the receipt of additional evidence, what the reasonable value of Potter’s services was, in caring for the Gilkey cattle. This will necessarily include a determination of when Tranel’s responsibility ended; and when Potter’s responsibility began and when it ended.

When the district court makes its determination with respect to the reasonable value of Potter’s services, it should also make a determination with respect to offsetting considerations, including these:

1. It is suggested that Potter actually cared for the Gilkey cattle during a period of four months more than he has been given credit for; that he should be given credit for this period; and that it should be charged to Tranel.

2. Complaint is. made because Potter did not register or deliver registration papers to Mrs. Gilkey. She was therefore compelled to sell cows and calves as commercial animals and not as registered Charoláis animals. See Rinding 11 of the trial court’s Findings of Fact. The question is whether Mrs. 'Gilkey is entitled to off-setting damages on account 'of a failure to deliver registration papers; and if so, how much?

3. The most Potter could claim was a right to graze 125 animal units. There is evidence and a claim that he grazed more. It should be determined whether that is true; and if so, what compensation on account thereof should be allowed to Mrs. Gilkey and against Potter, for the extra animal units grazed.

4. Paragraph 12 of the Livestock Agreement between Gilkey and Tranel provides :

“All losses of female breeding stock belonging to Gilkey during 12 months proceeding branding time, except as below, shall be satisfied by replacement of a recordable female calf of equal or better quality and Charoláis percentage from Tranel acceptable to and to be branded with the brand of Gilkey at branding time. Large losses attributed to unavoidable disaster not caused by negligence to be shared on 50-50 basis.”

Tranel interprets this paragraph to mean the damages for loss of Gilkey cows can be settled by payment of the market value of a calf for each cow lost. There is, however, no evidence that Tranel or Potter ever replaced or attempted to replace female breeding stock, which had been lost, with recordable female calves of equal or better quality and Charoláis percentage. The question therefore arises as to whether damages for loss of Gilkey cows can be settled by payment of the market value of a calf for each cow lost, as claimed by tra-nel. We have frequently said we prefer not to decide questions of this kind until they have first been decided by the trial court.

This means the trial court should determine whether Tranel’s interpretation of paragraph 12 is correct; and whether Tra-nel or Potter did what was necessary to take advantage of it. If the interpretation is not correct, then damages for the loss of Gilkey cows cannot be settled by payment of the market value of a calf for each cow lost. If Tranel’s interpretation is found to be correct, then the trial court must determine what credit needs to be given to Tra-nel or Potter on account of paragraph 12.

We have heretofore made it clear that the judgment in favor of Mrs. Gilkey and against Tranel, for the loss of cows and calves, should be reconsidered. We have also made it clear that, when the district court determines the reasonable value of Potter’s services, it should also make a determination with respect to certain off-setting considerations. Thus, the case must be remanded to the district court for retrial.

Remanded for further proceedings.

1 . Conclusion 3 appears to be ambiguous and unclear. On. remand it should be made clear.