11 Kan. 292 | Kan. | 1873
The opinion of the court was delivered by
Lee sued Hunter to recover $4,027.24 damages, for an alleged failure on the part of Hunter to receive and pay for a lot of cattle according to contract. Hunter in answer to the petition, admits that in July 1870 he made a contract with Lee for the purchase of ,840 head of cattle, for which he agreed to pay three-and-three-fourths cents per pound, gross weight, on delivery at the depot of the Kansas Pacific Railway Co. at Topeka, Kansas, to be delivered and weighed on or before the first day of October 1870; also, that at the time of making said contract he paid Lee on the same $1,000, and that about the 21st of September 1870 he received on the contract 272 head of the cattle, amounting to $12,777.37, and that he paid Lee at that time, on the contract, $10,000. He denies all the other allegations in the petition. Hunter for a second answer, and by way of defense, sets out that the sale was by sample, and warranty, and he avers that the cattle were not according tp contract. And for a third defense, and by way of counterclaim, he sets up a contract of sale by sample and warranty, and claimed $10,000 damages for a failure on the part of Lee to deliver the cattle according to contract. To these several answers Lee interposed a general denial. The case was tried upon these several issues, by a jury, at the December Term 1871 of said court. ■A verdict was given in favor of Lee for $1,936.97, and judgment was rendered thereon by the court.
“That upon the allegations made by the defendant (Hunter,) in his answer and the evidence he has offered, you cannot find that Hunter is entitled to damages for any breach of contract on the part of Lee.”
The third defense in the answer was substantially, that in July 1870, the plaintiff represented to him, defendant, that he was the owner of a large number of cattle, in three different lots of about 300 in each lot, and that he was anxious to sell the same to defendant; that plaintiff showed to defendant a sample of his cattle, and as an inducement to get defendant to purchase the cattle, represented to defendant that the residue of the cattle were as good as the sample shown; that defendant, relying on said representations, and believing them to be .true, agreed with the said plaintiff to buy of him 840 head of said cattle, and to pay therefor three-and-three-fourths cents per pound gross weight, to be paid for at the time and place of delivery, as alleged, provided said cattle were in every way as good, large and fat as they were represented to be, and upon no other terms, conditions or consideration whatever; that the said plaintiff then agreed to sell the same to defendant upon the terms and conditions aforesaid, and agreed to deliver and weigh the same to defendant at the depot of the K. P. Rly. Co. at Topeka, Kansas, on or before the 1st of October 1870; that defendant at the time of making the agreement paid plaintiff on said cattle, $1,000; that about the 21st of September 1870, the plaintiff delivered to the defendant 272 head of said cattle, and at that time the defendant paid the said plaintiff the further sum of $10,000. It is also averred in said answer, that the defendant duly performed all the conditions of said agreement on his part; that he has always been ready and willing to accept the residue of said cattle so purchased, and to pay the price he agreed