111 F. 822 | 9th Cir. | 1901
after stating the case as above, delivered the opinion of the court.
One of the contentions upon the part of the appellants is that the appellees cannot demand the specific performance of the contract, for the reason that they themselves failed to carry out its provisions by refusing to pay the $23,325, which, under the contract, became due upon the delivery of the cattle which were turned over to and received by the appellees upon October 21st and 22d. The contracting parties, at the time of entering into the contract, had estimated the herd of cattle at 30,000 head. It was known that it consisted of two grades,—beef cattle and stock cattle. It was believed that of the former there were 9,000 head, and the Cattle. Company so guarantied. The price of $25 per head for the whole herd was
But whether the agreement in this instance is strictly one for a penalty or for liquidated damages is not material. In either case it is made void by the Code of Montana (sections 2243, 2244), which enacts that a contract by which the amount of damages to be paid or other compensation to be made for breach of obligation is determined is to that extent vo.id, except that “the parties to a contract may agree upon an amount which shall be presumed to be the amount of damages sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” There is nothing in the record.to show that the damage to the appellees by reason of the breach of the guaranty in this case could not have been ascertained without difficulty. The only element of damages from the shortage in the number of the beef cattle was the difference between the contract price and the market price at the time of delivery: The appellees had no legal excuse, therefore, for refusing to pay the $23,325 which was. due under the contract upon the delivery of cattle on October 22d. They had no right to withhold the monej'-, or to apply it on their claim for damages. Their damages, if any they sustained under the contract, had not been liquidated. By refusing to make the payment, they violated a material provision of their agreement. Their refusal to pay justified the appellants in declining to make further delivery of cattle, and it effectually bars them now from suing in equity for the specific performance of the contract.
• ft is said, however, that the appellants failed to avail themselves,
The decree will be reversed, and the cause remanded, with instruction to dismiss the bill.