Morris v. Wibaux

• Decision Date: 11 October 1895
• Citation: 43 N.E. 837,159 Ill. 627
• Parties: MORRIS v. WIBAUX.
• Court: Illinois Supreme Court

159 Ill. 627

43 N.E. 837

MORRIS

v.WIBAUX.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action by Pierre Wibaux against Nelson Morris, in the superior court of Cook county, J. Hutchinson, Presiding Judge. Judgment for plaintiff, which was modified by the appellate court on appeal (47 Ill. App. 630), and defendant further appeals. Affirmed.Moran, Kraus & Mayer, for appellant.

Flower, Smith & Musgrave, for appellee.

The parties to this action entered into a contract hereinafter set out. Appellee seeks to recover from appellant the contract price for cattle delivered in September, and not paid for, which claim is made under the common counts of his declaration. By an additional special count he seeks to recover interest at 10 per cent. from September 7, 1890, under the Montana statute, on the contract price of such cattle as sold and delivered; and by two special counts a recovery is sought to be had for damage alleged to have been sustained by reason of appellant's refusal to receive cattle on hand September 9, 1890, which appellee claims appellant ought to have received under the contract. To the common counts appellant pleaded general issue and set-off; to the additional and special counts the general issue was pleaded. Prior to September 5, 1890, appellee had delivered, and appellant had received and paid for, 1,293 steers and 3,232 cows. Upon September 5th, 6th, and 7th appellee delivered to appellant 1,072 cows. These cattle were received by appellant, shipped to Chicago, and have not been paid for. On September 9, 1890, appellant notified appellee that he (appellant) would receive no more cattle. The action is upon the contract to recover-First, the contract price for the 1,072 steers and 370 cows delivered at the September delivery, and not paid for; second, to recover damage claimed to have been sustained by appellee by reason of appellant's refusal to receive 1,120 steers and 1,127 cows which appellee claims to have had on hand on September 9, 1890, and which he claims appellant ought to have received under the contract. Of these cattle which appellant refused to receive, appellee claims to have resold, between September 9th and November 10th, 708 steers and 762 cows; the balance, viz. 412 steers and 365 cows, he claims to have had on hand on November 10, 1890. The pleas were non assumpsit and set-off. Trial by the court without a jury. Finding for the plaintiff in the sum of $54,575.90. It appears this finding was had by charging appellant with cattle delivered in September, $45,435, and with $9,532.75, loss on 708 steers and 762 cows shipped and sold by appellee after appellant's refusal to receive, and with $5,801.66, difference between contract price and market value of 412 steers and 365 cows held and on hand November 10th, and allowing a reduction of $6,253 by reason of certain cattle shipped by appellee and certain cattle on hand November 10th failing to be of a quality to be furnished, and to comply with the provisions of the contract. Much testimony was heard on the trial, the evidence comprising about 5,000 typewritten pages, and propositions of law, 19 in number, were asked to be held by the plaintiff, and 49 in number were asked to be held by the defendant. A motion for a new trial was overruled, and an appeal prosecuted to the appellate court of the First district, where there was a special finding of facts and judgment by that court as follows:

‘The court, having examined the transcript of record of the court below herein, and considered the errors assigned by the appellant and the cross errors assigned by appellee, and the arguments of the attorneys for the respective parties, finds from the evidence contained in the record the following facts: That on the 21st day of June, 1890, at Miles City, in the state of Montana, the appellant and appellee entered into the following contract: ‘This agreement, made and entered into this 21st day of June, A. D. 1890, by and between Pierre Wibaux, of Mingusville, in the county of Dawson and state of Montana, party of the first part, and Nelson Morris, of Chicago, in the county of Cook and state of Illinois, party of the second part, witnesseth: That said party of the first part hereby sells and agrees to deliver unto party of the second part all his steers from three years old and up, now on his range between the Little Missouri and the Yellowstone rivers, estimated at about thirty-five hundred head, more or less, branded and marked W (W bar) on the right side and on both sides; also all of the steers from three years old and up, to be delivered by the Green Mountain Stock-Ranching Company under their contract with said Pierre Wibaux, known as the (F UF) brand; and also all the four year old steers and up, to be delivered by the Powder River Cattle Company, under their contract with said Pierre Wibaux, known as the 76 brand; said steers as above enumerated to be good, merchantable cattle, with no stags, cripples, or big jaws among them. And in addition to the above-described steers said party of the first part also hereby agrees to sell and deliver to party of the second part all of his dry cows now on his range above mentioned, and also all the dry cows to be delivered under contract with said Pierre Wibaux by the Green Mountain Stock-Ranching Company and the Powder River Cattle Company, all of said cows to be from two years old and up, branded and marked as above-mentioned steers. The total number of said dry cows estimated at about three thousand head, more or less. For and in consideration of the above sale said party of the second part has purchased and agrees to receive said cattle, and pay therefor as follows: For the steers as above described at the price of forty-five dollars ($45) per head, and for the dry cows as above described at the rate of twnety dollars ($20) per head; the sum of twenty-five thousand dollars ($25,000) to be paid at the execution of this contract, the receipt whereof is hereby acknowledged, and the balance on delivery of said cattle on the cars at Mingusville, on the Northern Pacific Railroad, at any time between the 20th day of July and the 10th day of November, 1890. Party of the second part to receive from party of the first part a clear and good bill of sale of said cattle on the completion of delivery and payment of same. In witness whereof the parties to this agreement have hereunto set their hands and seals this 21st day of June, A. D. 1890. Pierre Wibaux. [Seal.] Nelson Morris. [Seal.] I. Meyer, Agt. [Seal.] Witness: David Tudkhorn. William Courtenay.’ That upon the execution of said contract the appellant paid to appellee $25,000, as provided in said contract. That the amount of the advance payment was arrived at and paid at the rate of $5 and $2.50 a head on the estimated number of cows, 3,000, and, as the cattle were delivered and paid for, a credit of deduction at those rates was allowed on each head delivered. That at the time of the execution of said contract the cattle referred to therein as being on appellant's range were granzing on appellee's range, which was about 75 miles square, and that the appellee did not know at that time, nor was it then possible to ascertain, the number of cattle answering the description of the contract, which were upon the range, nor was it then known what number of cattle would be delivered answering the description of the contract with appellant by the Green Mountain Stock-Ranching Company and the Powder River Cattle Company under their contracts with appellee. That subsequent to June 21, 1890, and prior to September 5, 1890, and on July 21st to 24th, August 16th, August 25th, and August 28th, respectively, appellee delivered to appellant under said contract, and appellant paid for, 1,293 steers and 3,232 cows, all of which cattle were inspected by the agent of appellant, and received by appellant's agents at Mingusville, Montana, and shipped to Chicago. That on September 5, 6, and 7, 1890, appellee delivered to appellant, and appellant's agents inspected and received, 1,072 steers and 370 cows, protesting against their quality, which cattle appellant refused to pay for, and has not paid for; and that at all times when the cattle were delivered by appellee to appellant at Mingusville, Montana, appellant had an agent or agents at Mingusville for the purpose of inspecting and receiving the cattle under the contract, and there was a fair opportunity for inspection of the cattle at the time they were delivered, but the defects in the cattle, if any, as regards the contract, were not always patent defects. That all the cattle were inspected by appellant's agents before they were received, and there was no fraud on the part of appellee or his agents in reference to the delivery or inspection of said cattle. That on September 9, 1890, appellant refused to, and notified appellee that he would not, receive any more cattle; and there was no substantial breach of the contract between appellant and appellee on the part of the appellee. That on September 9, 1890, appellee had on his range cattle which answered the provisions of the contract between appellant and appellee to the number of 1,072 steers and 1,085 cows. That subsequent to September[159 Ill. 633]9, 1890, and prior to November 10, 1890, of the number of cattle remaining on his range, as stated, answering the contract, appellee resold 660 steers and 735 cows. That the sales were made at the best market, and at reasonable times, and fair market values were obtained for the cattle thus sold. That appellant had due notice that unless he took the cattle the same would be resold by appellee, and appellant held liable for the loss. That the difference between the contract prices and the prices at which these cattle were resold by appellee, figuring on the net price or proceeds as at Mingusville, Montana, amounted to $8,182.55, which was the amount of the loss...