Morris v. Cohn
| Decision Date | 24 October 1891 |
| Citation | 17 S.W. 342,55 Ark. 401 |
| Parties | MORRIS v. COHN |
| Court | Arkansas Supreme Court |
APPEAL from Sebastian Circuit Court, Fort Smith District, JOHN S LITTLE, Judge.
Cohn & Harrington sued Morris, first, upon a note given for the purchase of 300 head of cattle; and second, upon an account for money expended in keeping the cattle.
Defendant filed an answer containing three paragraphs:
1. He alleged that there was no consideration for the note sued on that he had agreed with plaintiffs to purchase the cattle but they did not comply with their contract to deliver them to him.
2. He denied that plaintiffs took care of any cattle or expended any money for him.
3. He alleged that he is a Choctaw Indian; that, under his contract with plaintiffs, they were to deliver the cattle to him at his place in the Choctaw country; that plaintiffs are white men and citizens of the State of Arkansas, and that they intended when they made the contract, to drive the cattle through and over the lands of the Choctaw Indians to defendant's place and there leave them, in his possession, but as their property, until the note was paid off, to range and feed on the lands of the said Choctaw Indian, from whom plaintiffs never at any time had any consent so to do; that the contract was in violation of chapters 3 and 4, of title 28, of the revised statutes of the United States, and also of the laws of the said Indians, as well as against public policy, and that the note and contract were wholly void.
The contract referred to in the answer is as follows:
Cohn testified that the note and contract were executed on the 18th day of October, 1888; that they immediately began collecting the cattle, and by the last of November following had them ready for delivery. That about that time he received the following letter:
That, in a day or two after receiving the letter, he and Harrington went to Morris' house, and told him they had the cattle ready to deliver. That he refused to receive the cattle, and said he thought his letter ought to be sufficient. After a while he said he might take them next spring. Witness told him it would be expensive to keep them all winter. Morris said it would not cost much. This interview was before December 1st, 1888. Witness again saw Morris in Fort Smith in the spring of 1889, and asked him to take the cattle, and he refused. From December 1, 1888, until the suit was brought, April 8, 1889, the expense of feeding the cattle was $ 525. During that period 118 of the cattle had died. Witness is a citizen of Arkansas and a white man. When the contract was entered into, he intended to drive the cattle mentioned therein through the Choctaw Nation and deliver them to Morris at his residence within the time mentioned in the contract.
The verdict of the jury was in favor of the plaintiffs for the sum of $ 4000. Defendant has appealed. The grounds of his exceptions are stated in the opinion of the court.
Motion overruled and judgment re-entered.
Rogers & Read for appellant.
1. Plaintiffs could not elect to treat the contract as an absolute sale and sue for the purchase price so long as they retained the title and possession of the property in themselves. They were entitled to recover damages only, and the measure is the difference between the contract price and the market price on the day when the vendee ought to have accepted the goods. Benj. on Sales, p. 652-3; 8 Q. B., 604 9; Chitty on Cont., 11 Am. ed., 1331; 1 Bush, 621; 6 Bush, 463; 50 Ind. 303; 4 Col. 411; 12 Ind. 125; 39 Mo. 208; 73 Penn., 365; 50 N.H. 307; 30 Wis. 290; 62 Ind. 140; 94 id., 49; 50 id., 303.
2. The contract was invalid, in violation of the laws of the Territory and of the United States. Art. 38, Choctaw Treaty, July 10th, 1866; Rev. U. S. Stat., sec. 2117; 12 How., U.S. 79; 3 Barn. & Ad., 231; 14 Ohio St. 331; 30 N.H. 540.
Sandels & Warner for appellees.
1. By his action Morris waived a delivery of the cattle at his home in the Nation. Where one dispenses with or prevents performance of a contract, he cannot take advantage of the non-performance by the other. Field on Damages, sec. 299; 15 Pa. 135-6; 100 N.Y. 127; 26 Mich. 173; 40 Ill. 371; 167 Mass. 362; Wharton on Cont., secs. 604, 995; 105 Mass. 280; 1 Bibb, 379; 2 id., 217.
2. The American rule is: "The vendor may keep the property as his own and sue for the difference in price; he may sell the property and recover the difference; or he may treat the transaction as a sale and sue for the agreed price." 48 Ark. 166; Field on Damages, sec. 299; Story, Sales, secs. 436-7; 3 Parsons on Cont., 208-210; Sedg. on Dam., 282; 15 Wend., 493; 53 N.Y. 426; 60 N.Y. 627; 2 Benj. on Sales, 1165; 44 N.Y. 72; 5 Johns., 395; 30 id., 555: 72 id., 595; 84 N.Y. 549; 49 Ia. 16; 48 Mich. 218; 82 Ill. 524; 118 Mass. 242; 127 id., 339; 135 id., 172; 10 Bush, 632; 3 Met. 557; 33 Mo. 391; 25 Ohio St. 490; 46 Pa. 177.
3. The validity of the contract is not affected by the laws of the United States or of the Territory. 43 Ark. 353; 48 Ark. 165. The title to the cattle passed to Morris on performance of the condition. Neither the letter or spirit of the laws were violated.
Clayton, Brizzolara & Forrester and Sandels & Warner for appellee, on motion for rehearing.
The question upon which this cause was reversed was never raised nor considered as material by appellant, save by argument in this court. It was not raised by the instructions asked by defendant. The defendant contended that there must be an actual delivery, and that in case of vendee's refusal plaintiffs had no right of election--only the right of action for damages. Plaintiffs contended (1) that when vendee refused to receive the cattle he waived a delivery; (2) that upon vendee's refusal to receive, plaintiffs had the right of election of three remedies. This was the only issue. Errors not complained of in the trial court cannot be assigned here. 51 Ark. 212; ib., 351; ib., 441; 50 id., 348; 49 id., 253; 44 id., 103. A party moving for a new trial abandons previous exceptions unless they are incorporated in his motion. 39 Ark. 423.
Rogers & Read contra.
The question of the failure to give Morris "notice that they held the cattle for him and subject to his order" was raised by objections to instructions. No effort was made to prove such notice, and the question could not be raised in any other way than by objections to instructions on that subject.
The questions which it is necessary to decide on this appeal are raised by the defendant's exceptions to the charge of the court. This, so far as it is material to state it, was to the effect (1) that the contract for the sale of the cattle was not in violation of either of the laws mentioned in the answer, and was valid; (2) that if the plaintiffs were ready and prepared to deliver the cattle according to their contract, and, before the expiration of the time within which such delivery was to be made, the defendant notified them that he would not receive the cattle, then after such notice no formal offer to deliver was necessary, and the plaintiffs could treat the transaction as a sale, and recover the contract price; (3) that if the verdict was for the plaintiffs, they were entitled to recover, in addition to the contract price, the reasonable cost of keeping the cattle from the date at which the suit was commenced.
The law of the Choctaw Nation, which it is insisted the contract in question contravenes, was read in evidence. The first section provides that "no non-citizen shall be allowed to own control, or hold any stock of any kind" within the limits of that country except under permit, and then not exceeding a special number for his own use and such as may be kept in an inclosure. The second section provides that any non-citizen who shall violate the preceding section "shall be reported by the sheriff of the county wherein said non-citizen may be located, " for removal under the laws of the United States. The third section makes it a misdemeanor for any citizen of the Nation to evade or assist any non-citizen to evade the law "by sham sale or sale without a valuable consideration, of any stock to be held by * * * such citizen for...
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