Barclay McCowan Co. v. Steele

FINLAYSON, P. J.

This is an action to recover damages for the alleged breach of an oral agreement by defendants to plow plaintiff’s land. Plaintiff’s demand is based upon the claim that defendants undertook to plow the land to a depth of six inches. Defendants contend that the agreement was to plow to a depth of approximately three to four inches. Whether the agreement was what plaintiff claims it was or whether defendants’ version of it is the correct one is the crucial point in the case. The findings of fact were ' favorable to defendants; judgment was entered accordingly ; plaintiff moved for a new trial, which was denied, and from that judgment for defendants plaintiff now appeals.

The trial court found that defendants did not agree to plow to a depth of six inches but did agree to plow the

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land “to a depth sufficient for ordinary dry wheat farming, namely, approximately three or four inches in depth.” Appellant’s first point is that the evidence is insufficient to support this finding. While a contrary finding, if it had been made, would have been sustained by this court, it cannot be held that there was not sufficient evidence to sustain the finding as made. The agreement was arrived at in the course of a conversation between the defendant Steele and Barclay McGowan, the president of the plaintiff corporation. McGowan, in whose office the conversation took place, testified: “I told Mr. Steele I wanted section 25, 30-29 plowed for summer-fallow, . . . and that I would pay him $2.00 an acre for plowing that land six inches deep. He said he would do it. He would plow the land six inches deep for $2.00 an acre, to be paid for when the job was finished.” One Daniel Bidwell, who says he overheard the conversation, corroborated'McGowan’s version of it. Steele’s account of the transaction is as follows: “I walked into Mr. McGowan’s office. ... I wasn’t in there but a few minutes with him and I says, ‘Well, Mr. McGowan, I came up here to see about the plowing that we was talking about some time ago.’ He said, ‘All right,’ and he asked me what I would plow it for. I told him that I would plow it, give him good ordinary wheat plowing, for $2.00. That is just the words that was said. . . . Mr. McGowan says, ‘Well,’ he says, ‘It ought to be plowed six inches,’ and I never said a word more about it. Just before I got ready to go away I says, ‘Well, I’ll give you a good ordinary wheat plowing for $2.00.’ Mr. McGowan says, ‘Very well.’ I says, ‘I’ll do the best I can for you.’ That is just the words, the whole thing.”