34 Neb. 544 | Neb. | 1892
This is an action by purchasers against the seller to recover for an alleged failure to deliver 150 fat steers according to contract. On the trial of the cause the jury returned a verdict in favor of the defendants in error for the sum of $1,000, upon which judgment was rendered. It appears from the record that Reed & Gerard, who were stockmen, entered into a written contract with the Walter Brothers, who were engaged in a similar business, by the terms of which
Reed & Gerard, for their cause of action contend, that, the cattle were not of the kind required by the written-, contract; that a large number of them would run in weight outside the limits specified in the contract; that the-Walter Brothers did not have the requisite number of the size and weight for delivery at the place designated; and. that for this reason, and no other, they x’efused to take-the cattle and pay the balance of the purchase price;: and for all of which they claim damages in the sum of $2,000.
Walter Brothers, for their defense, maintained that after the original written .contract had been signed they discovered that it would be extremely difficult to comply strictly with its terms; that on the occasion when the clause expressing the price to be paid was added, which was done
The plaintiffs, in their reply, deny that the original contract was ever modified orally in any way. In the first paragraph of the petition the defendants in error allege “that at Davenport, Nebraska, on January 24, 1888, the defendants sold to plaintiffs the following described personal ¡property, to-wit: 150 head of good, smooth grade two .and three year old steers, none to weigh less than 900 -nor more than 1,050 pounds, for the sum of 3J cents per pound, said cattle to be delivered at Davenport, Nebraska, between April 20 and May 5,1888, at the option of the ¡plaintiffs, the plaintiffs paying to the defendants thereon at ■the time they purchased the same the sum of $500, the balance to be paid on the delivery of said cattle to the plaintiffs as aforesaid.” This is denied in the answer.
J. J. Walters, one of the plaintiffs in error, testified that on the evening of May 4, Mr. Gerard came -to take the cattle away on the next day. His direct testimony as to what was done is as follows: “ He (Gerard) made a specialty of chasing off every steer in the yard, and we went through the whole yard, and when we came to one white beaded stag I told him he need not take that under the contract, and then we had a dun steer weighing 700 pounds,
Q,. Did you have 150 besides these?
A. Yes, sir; I had 152 cattle.
Q,. What did you do then ?
A. Then after we went out there and after he consented! to take these steers, and as we passed in through the gate he wanted us to stop, and when we came around he drew out a letter of some kind. I could not read it nor my brother could not read it, but he tried to explain what it was, and he said he would have to go to the bank to make arrangements, and I would have to go along to get this-money to pay for the cattle, and between 4 and 5 o’clock I and Gerard went to the bank of Davenport, the People’s^ Bank, and when I came in I introduced Pratt to Gerard,
Q. Who is Pratt?
A. Cashier of the Davenport bank, and he told him he wanted to make some arrangements .to pay for these cattle;, that they suited him. He said, “ they suit me and are all' right,” and Pratt and he had some conversation, and lie-handed that letter to Pratt, but he could not make out-what it was; he could not make out what the signature was; he tried to read it himself. We suppose it was written in a hurry.
Q,. Go on and state the conversation.
A. And then Pratt spoke up and said, “Gerard, what kind of cattle are these?” and Gerard spoke up and said,. “They are a nice bunch of cattle, and I will take them,”' and Gerard said he came up here to make some arrangements to get the money, and Pratt spoke up and said “You can get the money provided the Walter Brothers indorse your check,” and I said “I don’t indorse other people’s checks,” and him and Pratt talked a while then, I cannot recollect exactly what their words were.
Q,. Did he get the money?
*550 A. No, sir. He would not give him the money without 3 would indorse the check, and I would not indorse it.
Q. What did you then, where did you go?
A. I and Gerard went back to the feed lot, and Gerard ordered the cattle to be shut off from water and feed at 4 o’clock. I told him I could not get any one to weigh the cattle at that time. He said, “ Well we will let it go until 6 o’clock.” Then Gerard ordered the water shut off. Gerard nailed up the trough, and after all that was done he said, “ Now this is according to contract, we want these .cattle weighed early in the morning, so we can get off.”
Q,. Was this in the evening or morning?
A. This was in the evening, on the 4th of May, 1888.
Q. That was when you shut off the water ?
A. Yes, sir. They were to stand twelve hours off from feed and water.
Q. State to the jury what Gerard said and did there at that time.
A. He said this was according to contract, and he shut off the water. We furnished the board, and he nailed the -water trough up, and after everything was done according to contract we went to supper, and that was the last done until in the morning.
Q,. What time in the morning?
A. At 6 o’clock.
Q,. What was done then?
A. At 6 o’clock Gerard came up from town and ordered -me to get out my hands to weigh the cattle, and I and Gerard and E. C. went up through the yards, and Gerard stood between the lane that runs down by the water trough from the yard they were in, in the east yard, and -from there to the north yard, and through that to the scale yard, and there we commenced weighing the cattle. There were no objections, and nothing said about it. We went on and weighed the cattle. We drove the cattle in the scale yard and E. C. weighed them, and Gerard took the*551 weights, and there was nothing said until the cattle were all weighed. We went to the house and computed the amount, and I believe the amount was $5,019.10 that the •cattle came to, and they had paid $500, which made $4,949.10 ($4,549.10). I told them it would take that money to move the cattle.
Q,. What did he say ?
A. He said he didn’t have the money. Then he commenced squirming. He said that I would not indorse the •check, and that was the only way he would take the cattle.
Q. Did he say that was the only way he could take the cattle ?
A. Yes, sir.
He also testifies that the 152 head weighed 144,260. Mr. Gerard does not deny that he sought to raise the money to pay for the cattle, as shown by this testimony. He, in effect, admits it by offering to prove that they had the money in a bank at Superior. Under a contract of this kind the seller has a right to insist upon the cash on the delivery of the property, and he cannot be required to take a check or instrument which may require his indorsement and consequent liability to procure the money.
The clear preponderance of the proof shows that the ■defendants in error were satisfied with the cattle and would have taken them if the plaintiffs had not insisted upon payment upon delivery.
The court instructed the jury as follows: “If you find that the plaintiffs did not purchase such cattle on the refusal and neglect of the defendants to deliver the same under the contract, but that the plaintiffs had paid to the defendants as an advance on said contract any sums of money, and that the cattle were not delivered by the defendants under such contract, then the plaintiffs would be entitled to recover back from defendants such sums of money so paid them in advance on said contract, together with seven per cent interest from the time of the payment
“Ninth — As a general rule, upon the neglect or refusal of a .party to receive and pay for the goods and chattels enumerated in the contract, the party so selling has a right to go upon the market and sell such goods and chattels, and his-damage would be the difference between the price obtained for said goods and chattels when so sold upon the market and the price agreed to be paid for said goods by the person making a contract for the same, together with the costs,, expenses of making such sale, and the expenses of keeping: and caring for such goods and chattels until the same was sold, with legal interest, would be the damage the party would be entitled to recover; or, the party may elect to-retain such goods and chattels and recover from the purchaser such damages as he may have sustained by reason of the failure on the part of a purchaser to comply with the terms of his contract.
“Tenth — If a party elect to retain such goods and chattels, it is incumbent upon him to show that he has sustained damage in fact; if he does not show that he has suffered damage by reason of the failure of a party to carry out a contract-, he cannot recover, but if he retain the goods and chattels and suffered no damage by reason of the non-fulfillment of the contract, he will be required to return such sum as he has received as advancement upon said contract,
These instructions are clearly erroneous. The rule is, that if a person has advanced money in part performance of a contract and then refuses to proceed, the other party being ready and willing to perform on his part all the stipulations of the agreement, the former will not be permitted to recover back what he has advanced. (Chrisman v. Miller, 21 Ill., 236; Hansbrough v. Peck, 5 Wall. [U. S.], 506; Green v. Green, 9 Cow. [N. Y.], 46 ; Battle v. Rochester, 3 N. Y., 88; Leonard v. Morgan, 6 Gray [Mass.], 412.) As stated by Tiedeman on Sales, sec. 93 : “ When there is no agreement for future payments the sale becomes a cash transaction, in which the delivery of the goods and the payment of the price are concurrent and interconditional acts. (Haskins v. Warren, 115 Mass., 533; Phelps v. Hubbard, 51 Vt. 489.)” The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.