McNamara v. Home Land & Cattle Co.

• Decision Date: 16 January 1903
• Docket Number: 915.
• Citation: 121 F. 797
• Parties: McNAMARA et al. v. HOME LAND & CATTLE CO
• Court: U.S. Court of Appeals — Seventh Circuit

121 F. 797

McNAMARA et al. v. HOME LAND & CATTLE CO

No. 915.

United States Court of Appeals, Seventh Circuit.

January 16, 1903

John S Miller, for plaintiffs in error.

William Brace and F. C. Sharp, for defendant in error.

This action was originally brought by defendant in error, a corporation organized and existing under the laws of the State of Missouri, against the plaintiffs in error, citizens and residents of the State of Montana, in the Superior Court of Cook County, Illinois, and was removed by plaintiffs in error to the Circuit Court below. The action was to recover damages for the breach of the following contract:

'This agreement, made and entered into this 27th day of May, A.D 1897, at Chicago, County of Cook and State of Illinois, by and between the Home Land and Cattle Company, a corporation existing under the laws of the State of Missouri, by its President, Wm. F. Niedringhaus (hereafter called the party of the first part) and McNamara & Marlow of Big Sandy Montana, (hereafter called the parties of the second part) witnesseth:

That said Party of the first part, for and in consideration of the sum of One Dollar and other valuable considerations, hereby agrees to sell to said Second Parties all of their herd of stock cattle, including steers, said herd consisting of Thirty Thousand head (30,000), more or less, now ranging upon the ranges in Valley, Dawson and Custer Counties, Montana, and being branded as follows, to wit:

'Z' on right hip.

'N-N' on left hip and side. and any other brands by said First Party.

The terms and conditions of said agreement to sell, are as follows:

First, Said cattle are to be gathered by said first party and counted out to said second parties at the Stock Yards at Nashua or Oswego, Montana, on the line of the Great Northern Railway, during the regular round-up season of 1897, no cattle to be tendered or accepted later than November 1st, 1897; all stock cattle in said herd to be accepted by said second parties whenever tendered prior to November 1st, 1897, in not less than train load lots; all steers from three years old and up, and all spayed heifers and dry cows to be delivered and counted at same points when marketable for beef, in the opinion of said parties of the second part.

Second. All calves of the season of 1897, to be delivered without count or charge to said second parties, whether branded or unbranded.

Third. No lumpy jawed cattle to be counted in deliveries.

Fourth. Should the two parties to this contract, at the close of deliveries for 1897, fall to agree upon a price at which said Second parties shall purchase the brands owned by said first party, together with all cattle bearing same, said first party agrees, during the round-up season of 1898 (prior to November 1st, 1898), to again gather all of the remainder of said herd that it can find with diligent work and deliver the same to said parties of the second part, at the same places and in the same manner and at the same price as provided for the season of 1897.

Fifth. The price to be paid by said parties of the second part for said cattle, is the sum of Twenty-Five Dollars ($25.00) per head for each and every head delivered as above provided, payable upon the delivery of said cattle.

Sixth. Said first party hereby acknowledges the receipt of the sum of Fifty Thousand ($50,000.00) as a first payment on said cattle, which sum is to be deducted, $25,000.00 from the first deliveries made under this contract, and $25,000.00 from deliveries not later than September 15th, 1897.

Seventh. Said second parties hereby bind themselves to accept and pay for said cattle at the price stated, when the same are tendered to them, under the terms of this Contract.

Eighth. Said first party hereby agrees to deposit with Messrs. Rosenbaum Bros. & Co. of Chicago, Ill., the written and acknowledged consent to this sale of all parties holding liens or mortgages of any kind against the cattle or property embraced in this Contract, upon the payment of the Fifty Thousand Dollars ($50,000.00) stated as a first payment above.

Ninth. Said first party hereby guarantees to deliver to said second parties during the season of 1897, not less than Nine Thousand head (9,000) of steers, of the ages of three years old and up, and spayed heifers of the ages of four years and up. Should they fail so to do, they hereby agree to pay to said second parties the sum of Twenty Dollars ($20.00) in cash for each and every head less than Nine Thousand (9,000) head of such cattle so delivered.

Tenth. At the end of the round-up season of 1897, the parties of the second part agree to purchase of party of the first part, Five Hundred (500) head of saddle and work horses at the price of Twenty Dollars ($20.00) per head, said horses to be selected by parties of the second part from entire herd of 700 head of party of first part, and to be serviceable and sound horses; work and saddle horses to be selected in proportion.

This Agreement is to be binding upon the heirs, successors and assigns of both the parties hereto.

Witness our Hands and Seals this 27th day of May, A.D. 1897.

(Signed) Home Land & Cattle Company, By Wm. F. Niedringhaus, (Seal), President. (Signed) McNamara & Marlow. (Seal)

Witness:

(Signed) Charles Haas,

(Signed) Geo. W. Niedringhaus.'

Plaintiffs in error pleaded non-assumpsit and set-off. One plea of set-off was for a breach of clause 9 relating to the guaranty of defendant in error to deliver, during the season of 1897, not less than nine thousand head of steers of the ages of three years and up, and spayed heifers of the ages of four years and up. Another set-off was for breach of clause four wherein defendant in error agreed, during the round-up season of 1898, prior to November 1, 1898, to gather all the remainder of the herd undelivered in 1897, that defendant in error could find with diligent work, and deliver to plaintiffs in error at the same places and same prices as provided for the season of 1897. Another plea of set-off was upon breach of defendant in errors' undertaking that the herd consisted of 'thirty thousand head more or less', the plea averring that the herd consisted, at the time, of not to exceed sixteen thousand head.

At the conclusion of the testimony, on motion of defendant in error a verdict was entered by direction of the Court, for $36,956.30, upon which, less a remittitur of $100.00 judgment was entered. To the order of the...