Price v. McConnell
| Decision Date | 16 September 1960 |
| Citation | 184 Cal.App.2d 660,7 Cal.Rptr. 695 |
| Parties | J. L. PRICE, Plaintiff, Cross-Defendant and Appellant, v. Carl R. McCONNELL, Defendant, Cross-Complaint and Respondent. Civ. 9809. |
| Court | California Court of Appeals Court of Appeals |
L. C. Smith, Redding, for appellant, Leander W. Pitman, Redding, of counsel.
Carr & Kennedy, Redding, and Tebbe & Correia, Yreka, for respondent.
This is an appeal from a judgment decreeing specific performance of an oral contract for the sale of purebred cattle which provided for the delivery of their registration papers and records.
Appellant brought this action to recover the alleged sale price of the cattle. In his complaint he set up two causes of action. The first cause of action seeks recovery of $2,807.10 as the purchase price due on an express contract for the sale and delivery of 25 Hereford heifers. The second cause of action is in the form of a common count based on an implied contract. It alleges an indebtedness from respondent in the sum of $2,807.10 for cattle 'had and received.' Respondent in his answer admitted the contract for the purchase and sale of the cattle, but alleged that the express contract called for the delivery of registration papers and records on the cattle in addition to the cattle themselves and that appellant refused to deliver said registration records and papers. Respondent also alleged that he was depositing the sum of $2,818.60 with the clerk of the court with the answer and making demand upon appellant for delivery of said registration papers.
Respondent also filed a cross-complaint alleging that appellant agreed to sell to respondent the purebred Herefords in question for the sum of $2,793.60 and by the terms of said agreement expressly promised and agreed to furnish to respondent the registration papers and records evidencing the necessary breeding data and information, wherein and whereby the said heifers have been and can be registered as purebred heifers, and tendered to appellant the purchase price thereof, together with the sum of $25 representing the fee for the furnishing of said registration papers and records as agreed; that the registration papers and records cannot be purchased or otherwise obtained by respondent except by the delivery of the existing papers and records now in the possession of the appellant; that said cattle cannot be sold as purebred heifers, nor can the value of the same as such purbred cattle be obtained on subsequent sale, without the delivery of said registration papers and records; that respondent has demanded delivery of said registration papers and records; and that appellant has failed and refused to deliver the same.
Appellant filed an answer denying the allegations of the cross-complaint with respect to the portions of the contract which called for delivery of the registration papers and realleged that the contract was for the sale of the cattle at so much per pound, less shrinkage, as beef cattle and not as purebred cattle.
The trial court found that a contract was entered into between the parties whereby appellant, through his agent, Floyd Santos, agreed to sell the cattle to respondent McConnell and to furnish with them the registration papers for an additional fee of $25, and entered judgment for respondent McConnell on his cross-complaint decreeing specific performance of the provision of the contract calling for the delivery of the registration papers and records and directed the clerk to pay the $2,818.60 on deposit with the court to appellant upon his delivery of said papers and records to the respondent.
Viewing the evidence, as we must on appeal, in the light most favorable to respondent, the record reveals that appellant is a physician and surgeon residing and practicing his profession in Redding, California. He is also a cattle raiser, and at the time of the transaction involved in this action owned a ranch near Cottonwood in Tehama County and also one at Gazelle in Siskiyou County. The two ranches were under the care and supervision of appellant's foreman, James Kelley, who resided at the Cottonwood ranch. One Floyd Santos was employed at the Gazelle ranch to care for the cattle there.
Appellant testified that he had culled 25 head of heifers from his herd of purebred cattle on the Gazelle ranch which he proposed to sell because they were of a strain affected with 'dwarfism,' or otherwise undesirable as purebred cattle. One of respondent's employees, Mrs. Sylvia Lyday, learned from Floyd Santos that the 25 head of culled heifers were for sale. She was familiar with some of the 25 heifers through her former employment with John Trisdale who had previously sold 16 of the culled heifers to appellant. Mrs. Lyday informed respondent that these heifers were for sale and that they were of a strain affected with 'dwarfism.' Thereafter respondent contacted Santos for the purpose of purchasing these cattle, but as Santos did not know the price at which the cattle were to be sold he told respondent he would have to find out and let him know. At that time Santos asked respondent to submit a figure. He did so, stating that he would give 15 cents per pound for the heifers, but he wanted the papers, 'That was number one;' that he had hundreds of heifers on his ranches and did not need any more unless he could get the registered heifers. It appears that Santos then called appellant by telephone, but was unable to get him at that time. Later Santos again phoned appellant, and after appellant consulted with his foreman, Kelley, Santos was advised as to the price. Respondent testified that thereafter Santos 'phoned me on November, or the 31st of October in the evening and said that Doctor Price had accepted the deal. And I said, 'Well, what is the deal?' He said, 'Fifteen cents a pound, three per cent shrink and a dollar a piece for the papers.'' Respondent accepted the offer and went over with his truck and took possession of the heifers on November 1, 1956.
Appellant acknowledged that Santos had phoned him requesting the price at which the cattle were to be sold. It appears he recognized the authority of Santos to make a sale on the ranch in order to save trucking the cattle to Cottonwood or to a salesyard. Kelley communicated to Santos a selling price at which he might sell the cattle.
Mrs. Lyday testified that she had previously discussed the matter of giving the papers with the cattle and that Santos had advised her that there might be a charge for a registration fee, $1 per head or $25 if McConnells were members of the Hereford Association, or $2 or $50 if they were not. The evidence developed that respondent was a member of the association.
Respondent testified that he asked Santos for the registration papers for the cattle and that he agreed to deliver the papers on the payment of the appropriate registration fee.
At the time the cattle were loaded in respondent's truck on November 1, 1956, Mrs. Lyday went with respondent for the sole purpose of checking ear numbers and tattoos, and Santos acknowledged that she did this. The tattoos had solely to do with the registration of the cattle as purebred stock. Santos acknowledged that he had prior to this date listed all of the heifers and entered the appropriate earmarks in the ranch books. Santos also...
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