87 P. 143 | Or. | 1906
delivered the opinion.
The record discloses that on August 20, 1905, the plaintiff’s manager, William Hanley, and the defendant met by agreement in Bear Yalley for the purpose of passing upon the quality of the cattle to be subsequently delivered by the defendant to the plaintiff at Baker City in pursuance of the written, contract; that defendant had at the time and place stated a band of 578 head of cattle which he offered to Hanley for the purpose of having him pass upon the quality; that after Hanley looked the band over he selected therefrom some 200 or 250 head as complying with the contract and such as he would be willing to accept when delivered, but the defendant, being dissatisfied with the manner in which Hanley was cutting the cattle, notified him that he would refuse to be further bound by the contract, and subsequently sold the cattle to other parties, and never delivered or offered to deliver to plaintiff any cattle whatever under the contract in question. There is much testimony in the record as to what was said and done by the respective parties at the time the cattle were offered by defendant to plaintiff for the purpose of having them passed as to whether they were of the
“If you should find from a preponderance of the evidence that at any stage of the passing upon the cattle in question the plaintiff refused to pass and accept a three or four year old steer which was not in fact thin flesh or rough or Holstein or Jersey blood, the defendant had the right to refuse any other or greater number of cattle for plaintiff’s inspection, and that it would amount to a repudiation of the agrément on the part of the plaintiff.”
And the court further instructed:
“If you should find that the defendant had at any place in Bear Valley at the time agreed upon 600 head of cattle of the kind, age and quality required, and was ready, able and willing to furnish them to the plaintiff to be then and there passed and accepted by it, and the plaintiff refused to pass and accept 278 head or any less number of such cattle, then the plaintiff made breach of and repudiated the agreement, and that in that case it is not entitled to recover back any part of the money advanced by it upon the agreement.”
By these instructions the jury were told in effect that the refusal of Hanley, the plaintiff’s manager, to pass and accept any one animal which, in their opinion, the evidence showed to be of the kind and quality specified in the contract would be such a repudiation of the contract by the plaintiff as would defeat a recovery in this action; but this is not the law. The rule is unquestioned that a party who has advanced money in part performance of a contract, and then refused to proceed to its ultimate conclusion, the other party being ready and willing to perform on his part, will not be permitted to recover back what he has advanced: Ketchum v. Evertson, 13 Johns. 359 (7 Am. Dec. 384); Hansbrough v. Peck, 72 U. S. (5 Wall.) 497 (18 L. Ed. 520); Gibbons v. Hayden, 3 Kan. App. 38 (44 Pac. 445); Neis v. O’Brien, 12 Wash. 358 (41 Pac. 59, 50 Am. St.
Judgment reversed, and new trial ordered. Reversed.