Appellant's first cause of action is the only one involved herein as follows:
"That on or about the 19th day of August, 1936, the defendant agreed to purchase pasture from the plaintiff for cattle for the balance of the pasture season in Caribou County, Idaho, of the year 1936, at the agreed price of $3.50 per head for the balance of the season.
"That between the 19th day of August, 1936, and the 3rd day of September, 1936, the plaintiff received from the defendant for the purpose of pasturing during the balance of the pasture season of 1936, One thousand, one hundred and seventy-three (1173) head of cattle at the agreed price of $3.50 per head for the season."
continuing with allegations of performance on his part, partial but incomplete payment by respondent and assertion of a balance due of $870.50. *Page 457
No demurrer appears in the record and the answer is first a general denial and this affirmative defense:
"That on or about the 12th day of August, 1936, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to sell to this defendant and the defendant agreed to purchase 700 tons of hay for the sum of $6.00 per ton, the same to be fed by the plaintiff to the cattle of defendant upon the Austin ranch in Caribou County, Idaho. The plaintiff further agreed to pasture for this defendant 700 head of cattle during the pasturage season of 1936, and the defendant agreed to pay therefor, $3.50 per head for 600 and $3.25 per head for 100 head.
"That pursuant to said contract, the said plaintiff sold and delivered to this defendant 713.51 tons of hay and pastured for this defendant 740 head of cattle, that this defendant paid to the plaintiff for the said hay and pasturing of the cattle the sum of $6,846.60, which said payments were accepted by the plaintiff. That by reason thereof, the said defendant has been fully paid for the said hay and pasturing of said livestock."
The trial court gave the complaint and answer to the jury as stating the issues involved instead of narrating or paraphrasing them, which found for appellant.
At the conclusion of appellant's case in chief, respondent moved for a nonsuit on these grounds:
"First: that there is a material variance between the allegations of the amended complaint of the plaintiff, and the proof, in this:
"a. The evidence shows that there was a written contract entered into between the plaintiff and the defendant herein, and whereby the plaintiff sold to the defendant pasturage on the Austin ranch for the remainder of the season of 1936 for 700 head of cattle at a price of $3.50 for 600 cattle, and $3.25 per head for 100 head of cattle;
"b. The evidence shows that the pasturage purchased under the written contract has been paid for in full;
"c. The evidence shows that if the plaintiff had purchased the pasturage on the Stocking ranch it was not purchased for the season of 1936, but was only purchased for a period of two months; *Page 458
"d. The evidence shows that the season for pasturing cattle on the Austin ranch extended to approximately, December 20th, 1936.
"Second: That the evidence shows that the plaintiff procured the pasturage upon the Stocking ranch for the benefit of the defendant Proctor and Bunds and not for himself; that the defendant Bunds accepted the contract and paid the purchase price therefor;
"Third: That if the Court could conclude from the evidence that the plaintiff purchased the pasturage on the Stocking ranch and sold the same to the defendant, it was purchased under a different contract than was the pasturage on the Austin ranch and for a different period of time;
"Fourth: The evidence shows that the plaintiff had no right, title or interest in the pasturage on the Stocking ranch because he did not have a valid contract of purchase of the pasturage and paid no consideration therefor;
"Fifth: There is no evidence that the defendant and Bunds, or either of them, ever agreed to pay the plaintiff for the pasturage on the Stocking ranch the sum of $3.50 per head per season, or any other sum per head per season or any other sum."
which was denied, renewed in substance at the conclusion of the entire case, and again denied. After verdict for appellant a motion for judgment notwithstanding the verdict was made by respondent on the same grounds and reasons, and granted by the trial court and judgment entered accordingly, from which this appeal was taken.
The respondent justifies the judgment non obstante veredicto on the grounds that (1) a plaintiff must recover, if at all, upon the cause of action alleged in the complaint. He cannot recover when the evidence does not sustain the allegation of his complaint unless the complaint be amended to conform to the proof, and (2), where a cause of action is based upon one contract and the proof establishes an entirely different contract there is a failure of proof. Respondent contends that the only contract shown was that alleged in his affirmative defense and that the appellant did not pasture for the respondent the 443 head of cattle that were pastured on the Stocking ranch, for the evidence conclusively shows *Page 459 that the appellant grounds his claim to title or an interest in the pasturage on the Stocking ranch on the memorandum agreement "Exhibit D."
The defect in respondent's position is that he entirely relies upon two written memoranda as constituting an entire and complete written contract and ignores the evidence which tended to show there were continuing negotiations between appellant and respondent commencing with these memos and ending with a final agreement of pasturage for the 1173 head as claimed and testified to by appellant.
The memoranda on their face are so incomplete that without extraneous evidence no definite or certain agreement could be gleaned therefrom.
One of the memoranda, Plaintiff's Exhibit "C,"1 was signed by respondent and the other, Defendant's Exhibit 14,2 *Page 460 by appellant and exchanged, but neither states who the other party was, what was to be pastured, whether horses, cattle, sheep or pigs. From the entire record it is apparent appellant contended there was an agreement between the parties whereby he was to furnish pasture for whatever cattle respondent should ship from Montana to the Soda Springs country for the 1936 summer and fall season at $3.50 per head, a deduction of 25¢ per head for 100 head being allowed on account of a back haul from Soda Springs to McCammon, the cattle being intended for ultimate shipment to California.
Respondent, on the other hand, introduced evidence to show, and asserted, appellant had a contract to furnish pasture for 600 head only, at $3.50 for 500 and $3.25 for 100 and that as to the balance of the cattle and the pasture it was procured for respondent by appellant at $1 per head for old stuff and 75¢ for young animals, and that all appellant would be entitled to, if anything, and for which he did not sue, was a commission or compensation as agent, not as so much for pasture independently acquired and resold to respondent.
This thought is primarily bottomed on the Stocking memorandum as follows (Exhibit D):
While appellant purchased this additional pasture for $1 and for 75¢ and on his theory, the spread to $3.50 would have been his profit, it does not necessarily negative, as a matter of law, his position that he had an agreement with respondent for 1173 head in all. True respondent submitted testimony contradictory of appellant's position and fully sufficient to support his alleged contract, but the entire matter was for the jury on the proofs.
Contracts may be oral, written, or partly oral and partly written. (13 C. J. 304, sec. 127, note, 69; Lampasona v.Capriotti, (Mass.) 4 N.E. (2d) 621, 108 A.L.R. 430; *Page 461 G. M. Shutt Co. v. Andrews, 47 Ga. App. 530, 171 S.E. 219;In re Simplot's Estate, 215 Iowa, 578, 246 N.W. 396; SolPopofsky Co. v. Wearmouth, 216 Iowa, 114, 248 N.W. 358;Jackson v. Hughes, (Tex.Civ.App.) 52 S.W. (2d) 687; AcmeMfg. Co. v. McPhail, 181 N.C. 205, 106 S.E. 672; Zoharopulosv. Hamilton, 108 Or. 201, 216 P. 184; Raithel v. Miller, (Mo.App.) 221 S.W. 377; Schwartzman v. Pines Rubber Co., 189 A.D. 749,179 N. Y. Supp. 284.) No objection was made to the evidence offered by appellant that there was an agreement for 1173 head and that was the agreement he alleged. It is only when reasonable minds could not differ as to the conclusion to be drawn from the evidence that a question of law arises. (Fleenor v. Oregon etc. R. Co., 16 Idaho 781, 102 P. 897;McAlinden v. St. Maries Hospital Assn., 28 Idaho 657,156 P. 115, Ann. Cas. 1918A, 280; Lowary v. Tuttle, 36 Idaho 363, 366,210 P. 1006; Scrivner v. Boise Payette Lbr. Co., 46 Idaho 334,268 P. 19.)
Cases cited by respondent with regard to alleging one contract and proving another are easily distinguishable because the facts therein were not in dispute and one contract proved and another alleged. For instance, First Nat. Bank v. Eames,55 Idaho 628, 45 P.2d 795, a note was alleged and the proof showed a conditional sales contract. In Bean v. Katsilometes,50 Idaho 485, 298 P. 363, a three-year lease was alleged, a thirty months' lease proved. In Phillips v. Brown, 21 Idaho 62,120 P. 454, there was no contradictory evidence as there was herein. Snoderly v. Bower, 30 Idaho 484, 166 P. 265, andMcAllister v. Union Indemnity Co., 2 Cal. (2d) 457,32 P.2d 650, 42 P.2d 305, support appellant to the effect that if the contract is ambiguous, evidence aliunde is admissible to show what was meant and if there is sufficient evidence to support the verdict either one way or the other the same will not be disturbed. (Vinyard v. North Side Canal Co.,Ltd., 38 Idaho 73, 80, 223 P. 1072, 1073; Hatcher v. Ferguson,33 Idaho 639, 650, 198 P. 680, 16 A.L.R. 590; Wood RiverPower Co. v. Arkoosh, 37 Idaho 348, 215 P. 975; Sauve v. TitleGuaranty Surety Co., 29 Idaho 146, 158 P. 112; WashingtonTrust Co. v. Keyes, 88 Wash. 287,152 P. 1029; Henrickson v.Smith, 111 Wash. 82, 189 P. 550.) *Page 462
The record discloses there was pleading and proof supporting appellant, and the judgment non obstante veredicto should not have been entered.
The cause is therefore reversed and remanded, the judgmentnon obstante veredicto to be set aside, and judgment entered on and in accordance with the verdict. Costs to appellant.
Morgan and Ailshie, JJ., concur.
1 Date 193 — DEPOSITS: Balance brot. forward, August 12, 1936. Agreement 600 $3.50 per head for season 3 mo. 100 3.25 per " " " " " _________ 700 $1000 $1000 paid
I, E.D. Proctor agreed to take 700 tons hay with understanding I am to buy 1200 tons total if satisfactory with Mr. Bunds. At price of $6.00 per ton fed out.
Measure in 30 days.
(Signed) E.D. PROCTOR
2 Date 1936 Aug. 12, 1936
Agreement 600 — $3.50 per head for season 100 — $3.25 per head for " ____ 700 head to have good feed $1000 paid and look and care for from R.R. Austin R. . . .1936 crop.
I agreed to take 700 tons hay with understanding I am to have 1200 tons if taken with Mr. Bund's O.K.
Price $6.00 per ton all hay to be measured 30 days fed out on ranch . . . . after stacking: on or before 20 to 30 Sep. 1936
AUSTIN COMPANY
R. (Signed) HOWARD E. FULLMER.
"Soda Springs, Idaho.
"Sept. 2nd, 1936.
"Pasture agreement with H.E. Fullmer.
"I hereby agree to pasture up to 600 head of cattle branded D, 60 from Aug. 20 to Oct. 20, 1936, at the rate of $1.00 per head per month on adult cattle $.75¢ on yearling cattle.
"(Signed) J.H. STOCKING."