| Kan. | Jan 15, 1885
The ojiinion of the court was delivered by
The cattle described in the written contract of the parties were delivered and accepted by Dowell, defendant below, who gave to Williams, defendant in error, his check for $1,031.25 — the price of the cattle less the cost of weigh
The principal contention of the parties at the trial was over the hogs. When the case was called for hearing, Williams “ stated to the jury he did not claim that the hogs mentioned and referred to in the petition and for the recovery of the value of which in part the action had been brought, complied with the contract.” The important question of fact in the case, therefore, for the jury to determine, was, whether Dowell waived a compliance with the terms of the contract regarding the hogs alleged to have been delivered. Williams, among other things, testified: That he lived half a mile north of Robinson; that he had two conversations with Dowell after the contract, first, five or six days before July 9th, and then again on the 9th; that Dowell told him he wanted the hogs on the morning of July 9,1883; that he told him (Dowell) the hogs would not fill the contract, as they were not large enough; hat he told him he could get him others from his neighbors; that Dowell said “ he would see about it; ” that Dowell further said “that he had sold the hogs to Beattie, and whatever Beat-tie would take he would take; ” that at the time he (Williams) had 120 or 130 hogs; that he took his hogs and cattle to the stock yards at Robinson, on July 9th; that at Robinson he met Dowell, who helped weigh the hogs; that he made no objection to them; that when they got them weighed, they put them into the railroad stock yard — the shipping yard; that Dowell helped to put them in; that when this was done, he (Williams) and Haverfield went back for the cattle; that it was near five o’clock when they got through weighing the cattle; that after the cattle were weighed, they went to a hardware store and Dowell called for the weigh-tiekets of the cattle, and the cattle were then figured up; that Dowell then gave him a check for the cattle, except the cost of weighing, but before Dowell gave him the check for the cattle h¿ said “they would not take the hogs, and he could not také them
Upon this and other similar evidence, the court gave the following, among other instructions, to the jury:
“ If you find from the evidence that at or before the offering of said hogs to the defendant at the scales or yards in Robinson, the defendant was informed by the plaintiff that some of the hogs were too light, or too rough or too lean to comply with the contract, but that the defendant then said that he did not object on these grounds, or words to that effect, or that he would just as soon have hogs of the kind offered; or if you find that the plaintiff offered to the defendant to get heavy hogs in lieu of the light ones, but that the defendant, not expressly accepting or refusing the proposition, said that ‘he would see about it/ and thus delayed the matter till it was too late to get the hogs on that day, and then refused to take the hogs offered, and that at the time the plaintiff made such proposition he had the disposition and the ability to procure such hogs as would fill the terms of the contract in time, then this would be a waiver by the defendant as to the weight, smoothness and fatness of the hogs offered.”
We think that this instruction was misleading and erroneous. It is doubtful whether there was any evidence in the case to sustain the first part of the instruction. Even, however, if Dowell had said, five or six days before the hogs were delivered at Robinson, “that he did not object to them because they were too light, or too rough, or too lean,” that would not necessarily be a waiver of the terms of the contract, if, at the time
Again, when Dowell told Williams “that he had sold the hogs to Beattie, and whatever Beattie would take he would take,” this was a notification to Williams that unless the hogs were delivered in accordance with the terms of the contract, he would not take them, if Beattie would not. So much of the instruction as conveyed to the jury the intimation that if Williams offered to get heavy hogs in lieu of the light ones to comply with his contract, the conduct of Dowell was such as to constitute a waiver of the contract, is erroneous. Under the contract, it was the duty of Williams to deliver at Robinson hogs that would comply with its terms, and the mere offering to get hogs that would comply, without actually getting them and delivering them, amounted to nothing. Dowell was not called upon to accept or refuse any proposition that Williams made not. in accordance with the contract. It was not necessary for Dowell to say whether he would accept other hogs, or not. If Williams had fully complied with his contract, Dowell could not have refused a compliance on his part, without being liable for damages.
If Dowell had fraudulently acted so as to delay Williams from performing his contract, such conduct might have relieved Williams from a compliance with its terms; but we do not perceive any evidence in the record to sustain such a theory. Williams was notified in ample time to deliver the hogs on the morning of July 9th. He did not start with the hogs to Robinson until after dinner, and they were not weighed until the afternoon of that day. Soon after they were weighed, Dowell told Williams “ he would not take the hogs, on account of their being too light.” If Williams had the disposition and ability to get other hogs from parties near Robinson, to comply with the terms of the contract, as was testified to, he had time after the refusal of Dowell to get other hogs; he did not get other hogs to deliver, and he cannot now claim that Dowell waived a compliance with the terms of the contract by refusing to say whether or not he would accept other hogs.
“If you find that the defendant assisted in weighing or grading the hogs offered, and knew the hogs did not comply with the terms of the contract, but made no objection on that ground, and received and accepted the hogs, this would be a waiver as to the weight, smoothness and fatness of the hogs.”
Of course if Dowell received and accepted the hogs offered to him, that would have been a waiver of the terms of the contract, but the reference of the court to weighing and grading the hogs was out of place in that instruction.
Upon the trial, evidence was offered that one Haverfield helped select the hogs before they were delivered at Eobinson. Some of the evidence was to the effect that he was sent there by Beattie to see that the cattle were yarded and guarded away from the water. Other evidence was to the effect that Dowell sent Haverfield to Williams’s farm for the purpose of assisting Williams in selecting the hogs. Haverfield was a witness on the part of Dowell, and it was sought to prove by him whom he represented at the time of assisting Williams in selecting the hogs, and whether he had any authority from Dowell or Beattie to receive the hogs. Williams objected to this evidence, and the court sustained the objection. This was error. Williams had testified that Haverfield came up on the morning of the 9th of July to receive the stock. Dowell had the right to show that this was not true, and to show for whom Haverfield acted, and his authority in the premises. In this connection, we may also say that if Haverfield had authority only to assist Williams in selecting the hogs, it was not within his power to change the terms of the contract, as agent of Dowell, or to accept the hogs upon the farm of Williams. The contract provided that the hogs were to be delivered at Eobinson. During the argument of counsel for Williams, the remark was made to the jury, with the express sanction of the court, that “if the defendant received the cattle, he was bound also to receive the hogs.”- Under the circumstances of the case, the reply of the court to counsel was liable to mislead the jury.
In closing we may refer to the fact that although this ease has been submitted at two different terms of the court, and additional time given to "Williams for filing briefs, no briefs have been filed by him, or in his behalf, and therefore we have been compelled to dispose of the case without the assistance of any suggestions from his counsel.
The judgment of the district court will be reversed, and the cause remanded for a new trial.