121 Ky. 560 | Ky. Ct. App. | 1905
Opinion by
Affirming.
The controlling question is whether a tender of the cattle by the seller was necessary to entitle him to maintain his action against the purchaser for a breach of the contract. The seller’s right to demand the purchase price of the cattle was dependent on his' delivery of them at the time and place stipulated in the contract. He must be, not only able to comply, but, unless excused by the buyer, must offer to comply, by bringing the cattle to the appointed place of delivery. In this case the seller was able and willing to comply, but did not offer to do so. Which brings the case up to whether there was an excusing of the seller by the buyer. The law never requires a vain thing. When the buyer declines to receive the property,-or repudiates the contract before the time of delivery, a tender would be unnecessary, because
Appellee insists that the case comes within the principle of Chandler v. Robertson, 9 Dana, 291, and Sousely v. Burns’ Adm’r, 10 Bush, 87. In those cases the time of delivery was, say, from the 10th to the 20th of the month, at the buyer’s option. It was held that the buyer had the option only of selecting a day between the two extremes fixed by the contract, failing which the contract itself fixed the last day unconditionally for the delivery, and that a failure to tender the property on that day absolved the buyer from
A valid contract may be made determinable upon a- contingency or event, although its happening may depend solely upon an act to be done by one of the parties. An agreement to pay money or deliver goods on demand, or on so many days’ notice, or a. lease of property on similar terms, would not be bad for indefiniteness. The law supplies by implication the-corresponding necessary obligations to effectuate the
The correct measure of damages in this case is the difference between the contract price, $4 per hundredweight, and the market value of the cattle on the market at East View on or within a few days after September 1, 1904, which was shown by the evidence to be $2.85 per hundredweight. The court gave-the jury this measure in an instruction, but added, “and may also in your discretion find for plaintiff such other damages as he sustained by breach of the contract, not exceeding,” etc. There was nothing in. the case to support the last clause of the instruction,, and it should not have been given. The verdict of' the jury shows to a certainty that nothing was found for the plaintiff under the objectionable clause of the instruction. The weight of the cattle was stated in the evidence, about which there was no dispute.. $1.15 per hundredweight, the difference between the-contract and the market price, at the weights shown by the evidence, tallies exactly with the verdict of fhejury. Thereby the error in the instruction is shown to have been harmless, which, under the provision of section 134 of the Civil Code of Practice, this court is bound to ignore.
Judgment affirmed.