Wamhoff v. Newcomer

Beard, Justice.

The defendant in error brought this action against the plaintiff in error in the District Court, alleging in his amended petition: “First. That on or about the 17th day of November, A. D. 1910, in consideration that the plaintiff would buy of the defendant certain beets for the price of Four and 50/100 Dollars per ton, the defendant falsely and fraudulently represented, with intent to deceive plaintiff and well knowing said representations were untrue, that said lot of beets contained Two Hundred and Twenty-eight (228) tons and that said beets were sugar beets. Second. That plaintiff, relying on said representations and believing them to be true, bought of the defendant 228 tons of sugar beets at $4.50 per ton, making the total amount which plaintiff paid the defendant the full sum of $1,026.00. Third. That said beets were not sugar beets, but were in fact man-gel-wurzels, being an inferior quality of beets to sugar beets for feeding purposes, as the defendant well knew; and the defendant also knew that plaintiff purchased said beets for feeding purposes. Fourth. That said lot of beets contained only one hundred and fourteen and one-half (114J4) tons, which the defendant well knew. Fifth. That the said man-gel-wurzels were not worth to exceed the sum of two dollars and a quarter per ton, whereas sugar beets were worth $4.50 per ton, the same being the price plaintiff paid the defendant, believing the statements made by the defendant to plaintiff that said beets were sugar beets and not mangel-wurzels. Sixth. That plaintiff has been damaged in the full sum of Seven Hundred and Sixty-nine and 50/100 ($769.50) Dollars, for which he asks judgment with interest thereon from the 17th day of November, 1910, at the rate of 8% per annum.”

*491The defendant answered, denying “each and every material allegation in said petition contained.”

A jury was waived and the cause tried to the court, and, as requested by defendant, the court made in writing its findings of fact and conclusions of law. So far as necessary to here state, the court found that defendant agreed to raise in the year 1910 twenty acres of sugar beets and to sell the same to plaintiff at fifty cents per ton less than the market price in that year at Lovell, Wyoming, and that plaintiff agreed to purchase and pay for said beets at that price. That the market price at Lovell was $5.00 per ton. That defendant did not raise twenty acres of sugar beets, but only raised ten acres of sugar beets and ten acres of mangel-wurzels. That mangel-wurzels were of the value of $2.25 per ton and no more. That plaintiff paid to defendant for all of said beets at the rate of $4.50 per ton, amounting to $1,026.00.

“7. That there was no fraud or misrepresentations practiced by defendant on plaintiff, either as to the weight of said beets, or as to the kind and variety of beets that they were and defendant acted in good faith in connection with said transaction.”
“8. That the defendant did not comply with the terms and conditions of said contract.”

The court concluded as a matter of law that plaintiff was entitled to recover the difference between $4.50 and $2.25 per ton for one-half of the beets, or $256.50, and gave judgment accordingly. Defendant assigns error as follows: “1st. That finding of fact number 7, in the judgment aforesaid, absolves plaintiff in error from liability on the cause of action stated in the petition of defendant in error. 2nd. The judgment does not follow the petition, is not based thereon and is a departure therefrom. 3rd. The action is based upon tort and the judgment is for a breach of contract.”

The only question presented here is whether the petition is sufficient to support the judgment. The petition is in-artificially drawn and is lacking in that clearness and defi*492niteness in stating the facts constituting the cause of action which is to be desired in a pleading; but we think when liberally construed the material facts therein stated are, that the defendant sold, received pay for and agreed to deliver a quantity of sugar beets at an agreed price; that instead of sugar beets one-half of the beets delivered were not sugar beets, but were mangel-wurzels and worth only $2.25 per ton. The allegations of false and fraudulent representation might have been stricken from the petition without affecting the cause of action. If, as the court found, the defendant sold and received pay for sugar beets but delivered in part beets of an inferior quality he should restore the difference in value, whether he honestly believed them to be sugar beets or not, if in fact they were not. No prejudicial error being made to appear, the judgment of the District Court is affirmed.

Affirmed.

Scott, C. J., and Potter, J., concur.