Firlotte v. Jessee

PEEK, J.

The present controversy arose out of an oral agreement between plaintiff Firlotte and defendant Jessee wherein it was agreed that defendant would sell to plaintiffs for $600 the feed on 200 acres of land for the 1944 grazing season, together with the right to dispose of the same or use it as plaintiffs saw fit, reserving, however, to himself the adjoining 56 acres which, separated from the rest of the property by a narrow neck, were to be fenced off by defendant for the purpose of pasturing some of his cattle thereon. Plaintiffs went into possession and immediately put a band of ewes and lambs on the premises. After a period of 11 days the feed had been topped and the flock was temporarily removed and finished on other feed owned by plaintiffs. Approximately six weeks later plaintiffs returned and found cattle belonging to defendant grazing on the land, and all of the feed gone. Thereupon Firlotte demanded the return of a portion of the consideration which he had paid to Jessee upon the consummation of the agreement. Jessee refused his demand, and suit was filed. The trial court found for plaintiffs and entered judgment accordingly. Upon the denial of defendant’s motion for a new trial, this appeal followed.

By reason of the nature of the single issue herein presented, a summary of the entire testimony of the parties does not appear to be necessary. Suffice it to say, in the words of appellant, that “As between the testimony of the parties, there is a complete deadlock; each party contradicted the other on all salient points.”

Plaintiffs by their complaint alleged, and it likewise was contended at the trial, that their right to use or dispose of the pasturage was exclusive of any interest of defendant; that

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defendant made no request for a reservation nor was it otherwise agreed that he should be allowed to pasture stock on said 200 acres; that by pasturing his cattle thereon defendant breached his contract with plaintiffs; and that said action on his part wholly destroyed the value of the pasturage to plaintiffs. Defendant by his answer admitted the making of the agreement with Firlotte, but asserted that he had reserved to himself the right to pasture cattle on said premises.

Counsel for appellant concedes it to be the rule that, where the trial court, upon substantial evidence, has resolved a question of fact, such determination will not be disturbed on appeal. Nevertheless, he contends that the conclusion of the trial court herein was reached, “at least in part," by reason of the admission of improper evidence without which “respondents’ testimony would not have had the preponderance required." In addition, he urges that because of the contradictory statements of the parties “if the case were resolved upon their testimony, the preponderance required by law would not be with respondents." His argument in support of this contention is that the introduction of the attacked testimony “turned the preponderance of the evidence."