84 P. 515 | Idaho | 1906
— This is an action brought by the respondents, as copartners, to recover from the appellant the sum of $1,000, alleged to be due them on a certain contract for the purchase and delivery of certain cattle, and for damages. The respondents alleged in their complaint that on or about the fifth day of August, 1904, they entered into a contract with the appellant for the purchase of eighty head of beef steers, aged three years and upward, for which respondents agreed to pay the appellant, and the appellant agreed to accept, the following prices therefor per head, to wit: For seventy head, $31 per head, and ten head $26 per head, and in addition thereto, all two year old steers that the appellant might have at the date of the delivery, which were at that time in condition for beef, $22.50 per head. It is further alleged that the respondents advanced to appellant the sum of $500 as part of the purchase price for the said steers, and that the appellant thereafter refused and neglected to deliver said steers or any part thereof, or to return the money paid or any part thereof. Eespondents pray for judgment against the appellant for the $500 advanced and paid on said steers, and $500 damages sustained by them.
The appellant answered and denied generally and specifically every allegation of the complaint, and set up as a further defense that the appellant did sell to the respondents seventy head of steers at the agreed price of $31 per head, and ten head of steers at the agreed price of $26 per head, all of which steers were three and four years of age, and also all of the appellant’s two year old steers then owned by him that were in fit condition for beef at the agreed price of $22.50 per head; that the appellant agreed to deliver all of said cattle to respondents at Meadows, Idaho, on the twentieth day of September, 1904; that at the time of making said contract, and in order to bind the bargain and insure the performance of the said contract on the part of appellant, the respondents advanced to appellant upon account of said purchase price the sum of $500; that the appellant performed all and every of the terms and conditions imposed upon him in said contract, and fully complied with the said contract in every way,
The cause was tried to a jury, and a verdict was rendered for the defendant, and judgment was duly entered declaring the $500 so paid to be forfeited to defendant as damages for plaintiffs’ failure to comply with the terms of their said contract, and for costs of suit. A motion for a new trial was thereafter made, based upon a statement' of the case, which statement contained the evidence given on the trial, and the instructions given by the court to the jury. The court granted a new trial and this appeal is from the order granting the new trial. It does not appear from the record whether the new trial was granted on the ground of the insufficiency of the evidence to justify the verdict or because of errors in law occurring’ at the trial. In the oral arguments of the respective counsel before this court and also by their briefs the main question discussed is: “Has a vendee a right to recover back the money paid by him to bind the bargain in a contract for the purchase of personal property, when the contract has been violated by him and the vendor is not in fault?” The majority of the court conclude that it is not necessary to pass upon that question on this appeal; that appellant assigns but one error, which is as follows: “The district court erred in granting a new trial in this case, for the reason that said order is contrary to law and is not justified or warranted by the evidence in the case; that the verdict of the jury was not contrary to the evidence or to the instructions given by the court and was justified by the evidence;
The order of the court granting a new trial is affirmed, with costs in favor of respondents.