68 Ind. App. 593 | Ind. Ct. App. | 1918
This is an action by appellant against appellees to recover damages alleged to have been sustained by reason of the breach of a certain contract for the sale of cattle. The complaint is in three paragraphs. The first alleges in substance that on September 21,1914, appellant entered into a contract with appellees whereby he sold them certain cattle, which were to be delivered on November 1,1914; that appellees paid appellant thereon the sum of $100, and agreed to pay the remainder of the purchase price at the time of their delivery; that prior to the time for delivering said cattle appellees informed appellant that they did not know just when they could attend and receive the same, and pay the balance of the pur
The second paragraph contains the same allegations as the first, and in addition thereto the following : That at the time said contract was entered into appellant was the owner of said cattle, and had some of them in his pasture lot in the State of Michigan, and the remainder thereof in his pasture lot in the State of Indiana, where appellees inspected the same, and where they were kept by appellant until the time for their delivery; that on the first and second days of November, 1914, he was the owner of said cattle, and' on said days was able, ready and willing to deliver the same to appellees, and requested them to attend and receive the same, which they neglected and refused to do; that for a long time thereafter he held said cattle and requested appellees to attend and receive the same, which they refused to do; that if appellees had received said cattle and paid for them, as provided in said contract, he would have received the sum of $3,500 therefor; that on November 3,1914, a quarantine was placed upon the States of Indiana and Michigan, which prevented him from moving said cattle from his said pasture lots; that appellant and appellees had been expecting said quarantine for a long time prior to said breach of the contract in suit; that during the time of said quarantine the weather
The third paragraph contains the same allegations as the first, and in addition thereto the following: That at the time said contract was entered into the plaintiff was the owner of said cattle, and had some of them in his pasture lot in the State of Michigan, and the balance of them in his pasture lot in the State of Indiana, where the defendants inspected the same before and at the time of making said contract; that said cattle were kept by him in said pasture lots continuously until the time for the delivery thereof to the defendants; that on November 1,1914, which was on Sunday, and on November 2,1914, he was still the owner of said cattle, which were still, in said pasture lots as aforesaid, and that on said days, and dhring
The contract in suit was made a part of each paragraph of complaint as an exhibit. Appellees filed a demurrer to the first paragraph of the complaint for want of facts, and also a like .demurrer to the second and third paragraphs thereof. These demurrers were each sustained, and appellant refused to plead further. Judgment was thereupon rendered in favor of appellees for costs. Appellant has assigned the action of the court in sustaining said demurrers as the sole errors on which he relies for reversal.
It is obvious that the first paragraph of complaint does not seek to recover the contract price of the cattle sold, nor does it allege that he retained possession of the same for appellees, after the alleged breach of the contract, or that he sold them as their
For the reasons stated, the judgment is reversed, with instructions to overrule appellee’s demurrer to the first and second paragraphs of the complaint, to grant appellant leave to amend his third paragraph
Note. — Reported in 121 N. E. 37. Sales: effect of resale of property in fixing damages on refusal of purchaser to accept goods, 42 L. R. A. (N. S.) 670. See under (2-6) 35 Cyc 520, 525, 531, 583, 592.