Dillon, Ch. J.
1. sale of executory agreement. I. We have felt somewhat embarrassed in this case, in consequence of the peculiar character of the findings of fact by the District Court. In material respects, the findings aré noj; speeific and definite. Thus, it is not found, in terms, at least, that a definite time was stipulated for the delivery. So it is not distinctly found when the breach first occurred. It is stated, that defendant “said” *392certain things, that “ he seemed willing to let the cattle go,” etc., “ did not positively refuse to let plaintiffs have the cattle,” etc. These are not the findings of ultimate facts, such as the statute contemplates.
With this allusion to the character of the findings of facts by the court, we proceed to notice the several errors urged by the appellant.
I. It is claimed, that “ the court erred in finding there was a sale, when in fact there was only an executory agreement to sell.”
Answer. If it be conceded, that the court found or meant to find that there was an executed sale by which the title to the cattle passed, and not simply a contract to sell, this will not justify a reversal, for the petition is sufficient to authorize a recovery of damages for a breach of an executory agreement to sell and deliver. Such was evidently the purpose of the petition, and damages for the breach of such an agreement is what was given by the judgment of the court.
2_ten3er of price. II. “The court erred,” it is claimed, “in finding for the plaintiff when there was no tender of the price.”
Answer. The subsequent sale of the cattle to another being shown, the plaintiff in an action for damages would not be obliged to tender the price of the cattle as a condition precedent to the recovery of such damages. Wilson v. Little, 2 Comst. 443, 449; Collins v. Vandever, 1 Iowa, 573" court="Iowa" date_filed="1855-12-15" href="https://app.midpage.ai/document/collins-v-vandever-7091022?utm_source=webapp" opinion_id="7091022">1 Iowa, 573.
3 a — agreement, III. It is urged that “ the court erred in finding for the plaintiff, when the contract proven was a conditional sale or an agreement to sell upon condition the entire drove of twenty-two head was found for delivery by the time agreed upon, and the cattle were not so found — the condition thereby defeating the agreement.”
*393Answer. The court has not found, as a distinct and ultimate fact, that the agreement was to sell upon the condition that the entire twenty-two head should be found for delivery by the time agreed upon. "What “ contract was proven” other than that contained in the court’s finding of facts, we do not know. The court did not find that unless the twentyffwo head were found by a certain time, the defendant was under no. obligation to deliver any. It is true, certain statements are made, from which it might be inferred that plaintiff was to have all, and that defendant would not sell part without the whole. It was the defendant’s duty to have made diligent efforts to find them all — a duty which the facts found by the court show the defendant did not perform and did not want to. 'He could not shut his eyes and fold his arms, and yet claim that he had in good faith lived up to the contract which he admits he made.
4_ consideration. IV. It is next said that “ there was no consideration to support the agreement.” Answer. Under the Revision, the agreement was taken out of the statute 0f fraU(js by the testimony of the defendant. Assuming it to be established, there was a sufficient consideration to support it. Defendant’s promise to sell and deliver the cattle has a sufficient consideration in the plaintiffs promise to buy and pay for them.
5. Measure of ?aieofES: chattels. V. It is argued that “ the court erred in the measure of damages.” Answer. ~We admit the rule to be as contended for by the appellant, that ordinarily the measure of damages, in cases like the present, is the difference between the contract price and the market value at the time and place fixed for the delivery. The reason for the rule obviously is, that if the property is not delivered by the stipulated time the other party need wait no longer, is not bound afterwárd to receive it, has the money which he was to pay for it in *394.'his pocket, and with this and the advance in the price (which advance he is entitled to recover) the law supposes ;he can go into the market at once and purchase the article . ¡or commodity, and thereby be made whole.
From the facts reported by the court, we are unable to say :that it erred in not applying this rule to the present case.
The court does not find that the contract was broken by the defendant at any definite day. The court does not find, that, on Wednesday or any other period prior to the sale to McCoy, the defendant distinctly notified plaintiffs that he would not perform, or would be unable to comply wih his contract. For aught that appears, the plaintiffs were justified for the month in holding the purchase-money in their hands in the reasonable expectation that they would obtain the cattle.
Affirmed.