19 Ind. 142 | Ind. | 1862
Daggy was the plaintiff below, and Cox the defendant. The complaint consists of three counts. The first is upon a written contract, in this form:
“ Ladoga, Aug. 4, 1860.
“ We, the undersigned, bargain and sell to Addison Daggy the number of hogs opposite our respective names; said hogs to be well fatted, and in merchantable condition; said hogs to be weighed between the 20th of November and 20th of December; said hogs to be our best hogs, weighing two hundred pounds and upward, for which Addison Daggy agrees to pay four dollars per one hundred pounds gross, to be paid in par bankable paper, when the hogs are weighed, with one dollar per head in advance.
Names. Number of Hogs. Amount paid.
“James Knox, 15 . $15 00
“Daniel H. Cox, 65 $130 00.”
The plaintiff avers, that when this contract was executed
The second count is also upon the written contract, and is, in substance, the same as the first. And the third count is for money had and received.
Defendant answered: 1. By a denial. 2. That he kept and performed all the stipulations in said contract, on his part to be kept and performed, and was ready and willing, and offered to deliver to the plaintiff the number and quality of hogs specified in the contract, and weighed out the same to the plaintiff; but he refused to receive or pay for the hogs, etc. "Whereby defendant was greatly damaged in this, that he was compelled to, and did, sell the hogs for a price lower than the said contract price, to-wit, for three dollars per one hundred pounds gross; and defendant, in fact, says that, by reason of the premises, he has sustained damage to the amount of four hundred dollars, for which he claims judgment, etc.
Eeply by a general traverse. The issues were submitted to the Court, who found, specially, as follows:
The plaintiff, on the 4th of August, 1860, advanced to defendant one hundred and thirty-eight dollars, on sixty-four hogs, then sold to him by defendant, and, on the 17th of December, 1860, he called on the defendant and told him that he could not take the hogs unless he, defendant, would
The difference between the contract price of the hogs and the market value thereof, less the money advanced, was, and is, in favor of defendant, fifteen dollars seventy cents.
Among the various errors assigned upon the record, the one mainly relied on for a reversal, is: “ That the special finding is inconsistent with the general finding.” Thus, the defendant, by his contract, agreed to deliver sixty-nine hogs, “ to be of his best hogs, weighing two hundred pounds and upward,” while the special finding is, that defendant had, at the place of delivery, only fifty-eight hogs of his own feeding and fattening, and that, to make up the number sixty-nine, he bought eleven, after the date of the contract, which he had not fed or fattened, and which, with the said fifty-eight, were weighed and offered to the plaintiff'. As we construe the contract in evidence in this case, “it points to, and was intended by the parties to embrace, the hogs fattened and prepared for market by the defendant, and not those that may be bought by him, that had been fattened and prepared for market by others.” This construction accords precisely with that given to a similar contract in Mason v. Cowan, 1 B. Monroe, 7; and that case, so far as it relates to the point under consideration, has been referred to, with approval, by this Court. See Alexander v. Dunn, 5 Ind. 122, and Bales v. Waddle, 14 Ind. 349. But the appellee contends that the plaintiff, in this case, waived his right, under the contract, to insist on the delivery of hogs fed and fattened by the defendant himself, and that his offer to furnish other hogs “ to fill the contract, was, therefore, a sufficient compliance.” This conclusion seems to be incorrect. The hogs, it is true, were weighed in the presence of plaintiff’s agent, without objection, and the plaintiff offered to take them, provided the defendant would receive, in part payment, certificates of deposit. The defendant refused to receive the certificates, and the plaintiff then stated, that unless he could so pay for the hogs, he would
The judgment is reversed, with costs, and the cause remanded for further trial.