APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
See former opinion, 35 Ariz. 535, 281 P. 211.
Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.
Messrs. Clark & Clark, Messrs. Stockton & Perry, Mr. E. G. Frazier, Mr. Thomas P. Riordan and Mr. Stanley A. Jerman, for Appellees.
[38 Ariz. 198] ROSS, J.
The plaintiff and defendants entered into a contract by the terms of which plaintiff sold and leased to defendants certain hay and pasturage for the latter's sheep during the winter season of 1927-1928. The controversy is over the meaning of the contract and the respective obligations of the parties thereto.
It is the contention of defendants that they agreed to pay, and did pay, to plaintiff $18,000, for which plaintiff agreed to furnish them hay and pasturage for their sheep from November 1, 1927, to March 1, 1928, at 2 1/2 cents per head per day, and from March 1st to May 1st at 2 1/2 cents per head per day for ewes without lambs, and 4 cents for ewes with lambs.
Plaintiff contends that the agreement was that it should receive, at all events, for such hay and pasturage, $18,000 for the period from November 1, 1927, to March 1, 1928, and as much more as the hay and pasturage came to figured on the basis of 2 1/2 cents per head per day for that period, and 2 1/2 [38 Ariz. 199] cents per day per ewe without lamb, and 4 cents per day per ewe with lamb after March 1, 1928.
Defendants admit receiving under the contract $18,500.90 worth of hay and pasturage.
Plaintiff claims, in addition to the $18,000 paid it by defendants, $5,830.44 for hay and pasturage for March and April of 1928.
The case has been tried twice. At the first trial the plaintiff introduced the contract, a letter from defendants to plaintiff, dated September 2d, calling plaintiff's attention to certain obscurities in the contract, and plaintiff's answer thereto, and rested. Defendants thereupon moved the court for an instructed verdict upon the theory that the contract was not ambiguous, and such motion was granted. Upon an appeal to this court (35 Ariz. 535, 281 P. 211), we examined the contract and the contentions of both parties and concluded that "the contract is clearly one of the class which requires and permits extrinsic evidence to determine its true meaning." In other words, we held that the contract was ambiguous and uncertain, and that the parties might by proper evidence show what their true contract was. We accordingly reversed the judgment and remanded the case for a new trial. We refer to our former opinion for a statement of the facts.
In the second trial the defendants and others who were present during the conversations between S. C. Miller, president of the plaintiff, and the defendant Francis and his agents and employees, testified as to what was said, which testimony corresponded with the contentions of the defendants, as above stated. The two letters referred to as evidence in the first trial were also introduced in evidence. The jury's verdict was in favor of defendants. The appeal is from the judgment and the order overruling motion for a new trial.
[38 Ariz. 200] In our former opinion we said the contract was ambiguous, and that such ambiguity was not removed by the evidence introduced. We also ...