58 Cal. 431 | Cal. | 1881
On the 1st of April, 1880, the plaintiff contracted with the defendants for the sale by the latter to him of a lot of cattle of certain brands, which were then running with a larger herd on their rancho. The price agreed upon was twenty-two dollars and fifty cents per head for the steers, and twenty dollars per head for the heifers; and plaintiff paid to the defendants two hundred and fifty dollars on account of the purchase price. At the time of the contract neither plaintiff nor defendants knew how many cattle there would be of the description agreed on, nor was there any time fixed for the ascertainment of that fact or the delivery of and payment for them. On the 27th of May plaintiff notified the defendants that he would receive the cattle on the succeeding day, May 28th; and on that day went, with two employees, to the defendants’ rancho for that purpose. Plaintiff and defendants then got together the entire herd, consisting of two hundred and fifty head, out of which they selected those of the description mentioned in the contract, numbering twenty-six in all, and consisting of twenty-two steers and four heifers. When the twenty-six were so separated they were agreed upon as the cattle contemplated by the contract of April 1st. The parties then ascertained by computation that the balance of the purchase price was three hundred and twenty-five dollars, and the defendants thereupon tendered the plaintiff the cattle and demanded of him payment of that sum. The plaintiff
It is quite evident that the contract of April 1st was executory in its nature, and that a property in the subject-matter of it did not then pass to the plaintiff; for it was not then known by either party what or how many cattle in the defendant’s herd would come within the description agreed on.' All this was a matter for future ascertainment. By the contract the time for their identification was not fixed, nor was anything said about the time of the delivery or of the payment of the balance of the purchase price. In such cases the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions. (Benjamin on Sales, 438, 499; 2 Kent’s Com., side page 496.) When, therefore, the plaintiff went, in accordance with the previous notice given by him, to the defendants’ rancho, for the purpose of receiving the cattle, he should have gone prepared to pay the balance of the purchase money; for the part payment made by him at the time of entering into the contract did not operate to invest him with a
Judgment reversed and cause remanded.
McKinstry, J., and McKee, J., concurred.