Eddy & Bissell Live-Stock Co. v. Blackburn

• Decision Date: 10 December 1895
• Docket Number: 385.
• Citation: 70 F. 949
• Parties: EDDY & BISSELL LIVE-STOCK CO. v. BLACKBURN.
• Court: U.S. Court of Appeals — Fifth Circuit

70 F. 949

EDDY & BISSELL LIVE-STOCK CO. v. BLACKBURN.

No. 385.

United States Court of Appeals, Fifth Circuit.

December 10, 1895

Plaintiff in error is a corporation, chartered under the laws of the state of Colorado, engaged in the business of stock raising with one of its ranches in Bailey county, Tex. The defendant in error is a resident citizen of Travis county, Tex., with a ranch in Castro county, Tex., some 60 miles from the ranch of plaintiff in error. On the 23d day of August, 1893, plaintiff in error and defendant in error entered into a written agreement in the following terms:

'State of Texas, County of Bailey.

'This agreement, made and entered into this day by and between the Eddy & Bissell Live-stock Co., by its agent, D. F. White, of Eddy Co., New Mexico, and Bailey Co., Texas, party of the first part, and W. A. Blackburn, of Austin, Texas, party of the second part, to wit: That for and in consideration of the sum of two thousand dollars ($2,000.00) cash, in hand paid and the further consideration of the promises and agreement of said Blackburn, party of the second part, as hereinafter stated, that the party of the first part sell to the said Blackburn, party of the second part, all of its yearling steers, supposed to be from one thousand to twelve hundred head, said yearlings branded VVN, shoulder, side and hip marked thus: . . ., no yearlings to be under (12) twelve months old, and to be smooth, merchantable cattle, and to be rounded up and separated from all other cattle, after which the said Blackburn or his agent shall have the right to cut out or reject ten per cent. of the number of said cattle so rounded up or offered; after which the cattle so accepted by the said Blackburn shall be delivered to him or his agent at his pasture in Castro county, Texas, between the tenth and fifteenth days of October, 1893. The said cattle to be passed on before they leave the company's pasture in Bailey county, Texas, by the said Blackburn or his agent. In consideration of the sale of said cattle the said Blackburn agrees to receive and accept said cattle so delivered to him and to pay to the Eddy & Bissell Live-Stock Company the price of ten dollars ($10.00) per head for each and every steer yearling so delivered; the two thousand dollars now paid as above stated being a part of said price, and the remainder of said price to be paid on the delivery of said cattle.

'Witness our hands in duplicate, this August the 23, 1893.

'Cayotte Lake, Bailey Co., Texas.'

At the time of entering into this contract the company desired and insisted upon payment of $3,000 in cash. This was not convenient for Blackburn, and he paid $2,000, as set out in the written contract, and agreed to pay an additional $1,000 within a short while thereafter, if convenient. He did pay this additional $1,000 on the 11th day of September, 1893. On the night of the 10th of October, 1893, Blackburn came to the ranch of the company, and told White, the company's agent, that he could not pay the balance due on the cattle at the time fixed by the contract for delivery, but that he hoped to be able to get the money in a very short while. He insisted that, under the contract, the title to the cattle was in him, and that he was entitled to have them delivered at the time and place specified in the contract without the payment of the balance of the purchase money. White refused to make delivery upon such terms, insisting that payment of the balance of the purchase money must be made before he would surrender the cattle. At this time the cattle had been gathered and were under herd in the company's pasture, for the purpose of being passed upon by Blackburn under the contract. They were passed upon, and 914 head were selected as filling the requirements of the contract, and the cattle were driven by the company's agents to the ranch of Blackburn, and were there tendered. He failed to pay the balance of the purchase money, the company refused to deliver, and drove the cattle back to its pasture. Upon these points there is no substantial difference between the parties. There is a difference, however, as to the circumstances and agreement under which the cattle were driven over to Blackburn's ranch; the company contending that it was bound to drive them over under the original contract, and that Blackburn insisted upon its doing so, promising that if it would drive the cattle to his ranch, and hold them a day or so, until he could go to Amarillo with defendant's agent, he would and could get the money, and pay the balance on the cattle, and they should then be delivered, and, further, that if he did not get the money, he would pay the expense of driving over, holding, and returning the cattle. Blackburn, on the other hand, contended that the title to the cattle passed to him under the contract, without payment of the purchase money; that he was entitled to have them driven to his ranch, and delivered, without such payment; that he insisted upon his right, but further stated that if White, the company's agent, would go with him to Amarillo, he would there see if he could raise the money, and, if so, would pay it; that if he could not, he would insist on the company's surrendering to him the cattle without payment of the balance, and, if it would not do so, that it must, then and there, repay to him the $3,000 of the purchase money which it had received. Driving the cattle over to Blackburn's ranch and holding them and returning them involved a very considerable expense and damage.

The parties failing to make any adjustment, on the 31st of January, 1894, Blackburn filed in the circuit court of the United States for the Western district of Texas, at Austin his original petition, setting out the contract above copied, alleging the payment of the $3,000, that the remainder of the purchase money was to be paid when the cattle were to be delivered, and making the copy of the contract an exhibit to his petition. He alleged failure to deliver the cattle as agreed by the company, and, upon this alleged breach by the company, claimed return of the $3,000 of the purchase money, and also the advanced price of the cattle, and special damages in the loss of the use of his grass and water at his ranch, aggregating some $11,000; alleged his readiness, willingness, and ability, at time of...