197 P. 575 | Ariz. | 1921
(After Stating the Facts as Above.)— There is little or no conflict in the evidence. Some time in June or July, 1916, plaintiff, a resident of San Diego county, California, wrote to defendant, who resides in Yavapai county, Arizona, offering to sell him thirty-five Devon heifers and some cows. Replying to plaintiff, July 13th, defendant wrote:
“. . . I note your proposition in regard to the thirty-five heifer calves that yon state will be about a year old in October. I will take those at $40 per head and whatever number of those twenty-five cows yon mention that I can put in the same car with those heifers. Would wish to select the number out of the 25 head you mention at $60 per head. Would wish to have them calving or about to calve around about that time. Would want them delivered at Temecula station where we loaded the other lot, say between the first and middle of October, and as I expect to go over to San Diego about August 10th, I will call at your ranch and look them over and make the selection, as I don’t think that I can get around there in October, as I may be compelled to go East again about that time, so would leave the shipping to yourself as I feel you would do what is right in that event. Now -I am enclosing you my check on my bank here for $200 payable August 15th, or rather dated on that date. ... If I should wish and you were in shape to hold them a month later than October 15th, I would pay you for pasture, but I do not think it will be necessary, so hope my proposition will be satisfactory. If you think it necessary when I call and look your cattle over, we can draw up a few lines of an agreement, but I think you and I understand each other fairly well by this time. ...”
September 1st defendant went to plaintiff’s ranch and saw the thirty-five Devon heifers and confirmed his letter of July 13th by stating he would take them. The cows were not selected or identified at that time, but it was agreed that they should be selected and appropriated-to the contract by plaintiff at the time
“They were to be delivered at Temecula at that time by me. The delivery of these cattle at Temecula was to be the consummation of this bargain. They were to be paid for at that time and place.”
Plaintiff selected and gathered the cattle and drove them to Temecula October 15th, and on the 16th loaded and consigned them to defendant at Skull Valley, Arizona, and selected a man by the name of Steen as caretaker of the cattle while in transit. He says:
“There was no one there to take charge of them, so I sent my man with them.”
October 10th defendant "wrote plaintiff:
“I am sending a young man from Skull Valley to come back with the stock and will try to start, him by the 13th, as soon as I get up there and give him instructions how to handle them after you get them loaded at Temecula. . . . The kid I am sending knows nothing about our deal and will have nothing to do
The cattle were unloaded at Skull .Valley October 17th, of which defendant was notified by man in charge. Whereupon, under instructions from defendant they were reloaded and shipped in same car to Prescott, at which point they were delivered to and received by defendant on October 21st — except one cow which had died in transit at Barstow. Defendant paid the carriage charges to the railroad company, including $18 extra from Skull Valley to Prescott. October 21st defendant wrote plaintiff, complaining of loss of the cow in transit, claiming it was due to no bedding in car, and stating he had put in a bill against the railroad company and given Steen $10 on plaintiff’s account and $10 for expenses, and $18.75 to buy a return ticket; that the cows looked pretty bad after the trip, but the heifers stood it all right and looked good, and stated he would send draft next week. November 16th, defendant wrote plaintiff from Phoenix stating he was called away to Kansas City the next morning after the cattle were unloaded in Prescott and before they left the railroad yard; that he had been informed by a neighbor that one of the cows died two days after reaching the ranch, and stated “they undoubtedly were badly handled by both the railroad and shipper.” In this letter he inclosed a draft for $1,500, and promised to send bal
It is in evidence that defendant and his employees inspected the cattle the following morning after their arrival in Prescott. Two of the employees testified that their condition was bad; that they were all skinned np and bruised, and some of them limped.
The defendant takes the position that he is entitled to recover from plaintiff the value of animals accepted by him that subsequently died as the result of their bad treatment in shipment. This depends upon the question of ownership of cattle during transit when it is claimed the injuries were inflicted. If the title did not pass to defendant until they were delivered to him in Arizona, any injury they sustained during transit would adhere to the ownership and fall upon the plaintiff. If the title to the cattle passed before the shipment and claimed injury, a different rule would be applicable. We think it is deducible from the evidence and admissions in pleadings that it was the intention of the parties: (1) That title to cattle should pass to defendant on delivery and' payment of balance of purchase price, the two acts to be concurrent; (2) that plaintiff’s duties and obligations should end with the loading of cattle and turning them over to defendant’s shipper or representative; (3) that prior to or contemporaneously with the loading of cattle the defendant should receive them and take charge of and superintend their movement from California to Arizona; (4) that plaintiff had no authority from defendant to load and ship cattle in the absence of defendant or his representative to receive them.
The duty of delivery according to contract is an imperative one. A delivery by any other means or through any other agency than the one agreed upon entitles the vendee to repudiate the sale if he so elect,
“If the delivery or shipment is not made in accordance with the terms of the order or the stipulation in the contract between the parties, it is not considered that the delivery is made to the buyer’s agent and the title and risk remain in the seller.”
Since the delivery was not effected at Temecula, a condition precedent to passing title under the contract, it is apparent the property in cattle remained in plaintiff until his agent, Steen, found defendant and turned the cattle over to him in Arizona.. Any loss or damage to cattle in transit by reason of the negligence of his man, Steen, or the railroad company, or otherwise, was his and not the defendant’s. The defendant was entitled to receive them in Temecula and could have refused to accept them at any other place. He did not have to accept them, especially in a damaged condition and at a place different' from the one named in the contract. Having done so, however, after an opportunity to inspect the cattle, in the absence of fraud or concealment, or breach of warranty, the law definitely fixes his status as having waived the vendor’s' failure to deliver according to the terms of the contract, and requires that he pay the price agreed upon. The general rule is stated in 23 R. C. L. 1439, section 264, as follows:
It is a plain case of tender and acceptance of the cattle in their injured and damaged condition as a fulfillment of the contract. As was said in Brown v. Davidson, 42 Okl. 598, 142 Pac. 387, in which a similar question was involved:
“Upon receipt of the horse if it was found that he did not come up to the description given of him, defendant could have so advised the seller, repudiating the sale, and demanded the advance payment back. If what he had paid out had been returned to him and the colt taken back, he would have been unhurt ; if it had not, and he could prove his contention that it was not such animal as he had contracted for, he could have recouped his damages. But with full knowledge he chose to affirm the sale and renew his promise to complete the payment when due.”
The counterclaim being for the negligent injury of cattle before defendant became their owner, and not for deceit, fraud, or breach of warranty in the sale, it must of necessity fail. McQuaid v. Ross, 85 Wis. 492, 39 Am. St. Rep. 864, 22 L. R. A. 187, 55 N. W. 705; Hanson v. Hartse, 70 Minn. 282, 68 Am. St. Rep. 527, 73 N. W. 163; Dorsey v. Watkins (C. C.), 151 Fed. 340. These cases hold that the buyer of cattle who has had an opportunity to inspect them and has knowledge as to their condition at the time of acceptance as good as that of the seller cannot repudiate the contract except for fraud or breach of warranty.
BAKER and McALISTER, JJ., concur.