Garza y Garza v. Fant

106 F. 404, 45 C.C.A. 362, 1901 U.S. App. LEXIS 3973

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 5, 1901
• Docket: No. 822
• Status: Published

Opinion

McCORMICK, Circuit Judge

(after stating the facts as above). It is manifest that the first conclusion of law above stated by the learned trial judge is correct, being amply supported by his findings of fact. It seems equally clear to us that his second conclusion of law is not supported by his findings of fact. This suit is based on contract, not on tort, and the contract furnishes the correct measure of damages for its breach. The able and distinguished counsel who submitted a brief on behalf of the defendant in error with commendable candor conceues,that this is a suit on contract, and not on a tort; that ordinarily the contract itself furnishes the measure of damages recoverable; that the parties to this contract are competent; that its subject-matter and purpose are lawful; that it is based on a sufficient consideration; that, although a verbal contract, it is as binding on the parties thereto as one in writing; that-it is the duty of the trial court to enforce contracts, and not to make them; that as parties bind themselves they are ordinarily bound; and that in the interpretation of contracts, whether written or verbal, courts are ordinarily governed by the language used. The plaintiff in error correctly contends that a verbal contract not within the statute of frauds is as binding on .the parties as one in writing. Different rules of pleading and evidence in some respects are applied* in establishing the contract, but when it is once clearly proved its terms are as binding as if they had been reduced to writing. The fifth finding of fact states the verbal contract thus:

“Fant agreed, in consideration of tlie inclosing of said fifty two hundred and eighty acres in his pasture, which said Benito claimed he owned, to permit the said Benito Garza y Garza to keep his cattle and other lire stock within the ixielosure hy the year for an animal rental of SI per head on all of his stock, cattle, or horses in excess of one thousand head, which number were permitted to remain free of pasturage. That no definite time was fixed for tlie termination of said contract, and the said Benito had the right to remove his cattle or other stock from tlie ranch at any time.”

Finding 10 shows that the defendant Benito Garza y Garza had 1,109 cattle and horses within the plaintiffs pasture from date of contract .until December, 1892. Point 13 in the brief submitted on behalf of the plaintiff in error suggests that the allegata and pro-bata must correspond; a plaintiff cannot allege a joint contract with a number of persons, and recover on proof of a separate or several contract with one only of such persons. This, however, seems to be abandoned in the conclusion of Ms very able brief, where he suggests that the cause be remanded to the circuit court, with directions to render judgment in favor of tlie plaintiff against Benito Garza y Garza for the pasturage of 10!) head of stock, being the difference between 1,000, for which he was entitled to free pasturage, and 1,10!) head in the pasture, for two years and live months, at $1 per head per annum, with 6 per cent, interest; costs of the circuit court and of this court to be adjudged against the plaintiff, Fant. Waiving, therefore, the questions raised by this contention, it seems clear to ms, from the findings of fact, that the case not only may, but should, be considered as an action by the defendant in error against the plaintiff in error for the breach of a contract the terms of which are distinctly and definitely found, and are so clear that they leave no room for doubt as to the meaning of the contract, and none for construction and interpretation. The plaintiff in error was to have free pasturage for 1,000 head of his stock. He was to pay annually ⅜1 per head for each head in excess of 1,000. He had 1,109 head in the pasture. He was therefore hound to pay to the defendant in error annually $1 a head for 109 head, being the excess over the !,G00 for which he contracted to have free pasturage. It follows (hat the circuit court erred in the judgment it rendered in this case. The findings of fact required that judgment should have been rendered for the defendant in error (the plaintiff below) for the sum of §387.12, and do not support, and cannot maintain, the judgment rendered for the sum of $2,756.(52. The case having been tried without a jury, and submitted to us now on the findings of fact announced by the judge, we must reverse the judgment of the circuit court, and here render the judgment that should have been rendered therein. It is therefore ordered that the judgment of the circuit court be, ami it is hereby, reversed, and that the defendant in error, D. it Fant, have judgment here against the plaintiff in error, Benito Garza y Garza, for the sum of §387.12, together with interest thereon at the rate of 6 per cent, per annum from March 14, 1899, until paid (the judgment being,' for less than five hundred dollars, he cannot recover the cos is in the circuit court), and that the plaintiff in error have judgment against the defendant in error for all the costs of suing out and prosecuting this writ of error.