126 Iowa 410 | Iowa | 1905
— ■ Tbe plaintiffs bring this action at law to recover judgment against .defendant corporation, stating its claim or cause of action in two counts. Tbe first count alleges tbe sale by plaintiffs to defendant of twenty Hereford bulls, upon terms stated in a written contract, reading as follows :
Des Moines, Iowa, Sept. 24, 1900. Tbis Agreement Witnessetb: That Bedhead Bros., of Des Moines, la., have tbis day sold to Tbe Wyoming Cattle and Investment Company, of Des Moines, la., for shipment to their ranch twelve miles east of Cheyenne, Wyoming, twenty selected thoroughbred Hereford bulls, to be picked out by Geo. S. Bedhead. In consideration of the above sale The Wyoming Cattle and Investment Company will pay to said Bedhead Bros, twenty-six hundred dollars, ($2600.00) and the delivery of twelve (12) shares of paid up non-assessable stock in The Wyoming Cattle and Investment Company. Cattle will be delivered on the cars at Des Moines or other convenient point, on or before July 1, 1901, when payment shall be made. Bedhead Bros., By Geo. S. Bedhead.
It is alleged that, pursuant to said agreement, George S. Bedhead did pick out the requisite number of bulls, and on July 1, 1901, plaintiffs tendered a delivery of them to defendant on the cars at Des Moines, Iowa, but defendant refused, and has ever since refused, to receive or pay for said animals. On these allegations the plaintiffs, expressing their continued readiness to make the delivery, demand judgment for the contract price. The second count of the petition restates the foregoing allegations of fact, and seeks to recover an additional sum for services rendered and expenses incurred in keeping the bulls from the date when defendant refused to receive them. Answering the petition, the defendant admits the making of the contract, and admits that said plaintiffs did tender the delivery of twenty bulls, but denies that they were of the kindj character, or description designated in the written agreement. Further answering, de
In tire case at bar the claim presented by the amendment involves no repudiation or denial of the facts alleged in the original pleading. Both demands are based upon the theory of an enforceable contract of sale, and a refusal of the defendant to receive and pay for the property. If plaintiffs were right in their contention, and had made a good and sufficient tender of delivery, they could keep their tender good and recover the full contract price; or, if the market value of the property was less than the contract price, they could give defendant credit for such value and recover the difference as damages. If, after having brought suit for the contract price, plaintiffs concluded that, in view of a protracted contest, it was better to avoid the accumulating burden which the keeping of the animals in readiness for delivery would involve, and to modify their claim to one for damages, we see no good reason why it should not be permitted. Or if, after beginning their action and before trial, they discovered that a demand for the purchase price was not sustainable, we think they were at liberty to abandon it,- and, by amendment or by the institution of a new suit, ask a recovery in damages. The claim in either case is based upon the written contract, and, in one form as-well as in the other, a re
Fifth. The evidence in this case discloses that the plaintiff offered to the defendant, on the 2d day of July, twenty bulls, all of which he claimed were pure-bred selected Hereford bulls, but ten of which were not registered bulls. And with regard to this tender you will determine whether or not the same was rejected by the defendant at the time it ■was made; and, if you find from the testimony that it was rejected, you will then consider and determine, as in these instructions defined, whether or not the bulls so tendered
The giving of this instruction as modified by the clause which we have italicized was error. At this stage of the case plaintiffs were no longer seeking to recover the full contract price, but the difference between the contract price and the value of the bulls which they had tendered to defendant in performance of the contract. For that purpose they clearly elected to rely upon the tender alleged to have been made on July 3, 1901, of twenty registered bulls, which they list and particularly describe in testimony. It is the market value of this particular lot of twenty registered bulls of which they offer evidence on the trial and with which they propose to credit the defendant. No attempt is made to show the value of the ten unregistered bulls alleged to have been tendered on July 2d, and testimony as to these animals and the disposition which had been made of them was excluded upon plaintiffs’ objection. Bearing this condition of the record in mind, the error pointed out in the instruction under consideration will readily be apprehended. It directed the jury that if a tender was made and refused on July 2d, and a different or {l modified ” tender was made and refused on
We think the court was correct in saying to the jury that the “'value of the animals on the day they were tendered ” is the value which is to be compared with the contract price in ascertaining the damages, if any. But (ho instruction as a wh.ole seems capable of being construed to mean that, if on that particular day there was no demand for the bulls for breeding purposes, the plaintiffs could elect to hold them and credit defendant with their value as butcher stock. This, in our judgment, is stating the rule of law too narrowly, and might easily result in great injustice. It may be assumed as a matter of common knowledge that thoroughbred Hereford bulls of suitable age and condition
In Bullard v. Stone, 67 Cal. 480 (8 Pac.. Rep. 17), speaking of the buyer’s remedy against the seller, market value is said to mean the price, or sum for which an equivalent could be reasonably and fairly purchased at or near the place where the property should have been delivered, and within a reasonable time after a refusal to deliver. In Railway Co. v. Woodruff, 49 Ark. 390 (5 S. W. Rep. 792; 4 Am. St Rep. 51), it is defined as the price which a vendor can obtain after treasonable and ample time taken to effect a sale. The rule thus stated, especially as applied to a case where the seller does not exercise his option to sell the property on the buyer’s account, commends itself to our ideas of fairness between the parties. We think it safe to say that if, according to the usual and known method of trade, such property com
V. Exception is taken to the withdrawal of defendant’s counterclaim from the jury, but, in our judgment, the evidence would not sustain a finding thereon in defendant’s favor, and the court did not err in refusing to submit it. Many other alleged errors are assigned and argued, but the questions thus presented are governed by the conclusions already stated, or are of a nature not likely to arise" on a retrial.
Eor the reasons stated in this opinion, the judgment below is reversed.