Saunders v. Short

• Decision Date: 04 April 1898
• Docket Number: 381.
• Citation: 86 F. 225
• Parties: SAUNDERS v. SHORT et al.
• Court: U.S. Court of Appeals — Ninth Circuit

86 F. 225

SAUNDERS v. SHORT et al.

No. 381.

United States Court of Appeals, Ninth Circuit.

April 4, 1898

On the 16th day of March, 1898, the parties to this suit entered into a written contract, by which, in consideration of $4,000 at the time paid by the plaintiff in error to the defendants in error, and in consideration of further payments thereby stipulated for, the defendants in error agreed 'to sell and deliver to the said B. F. Saunders eighteen hundred head of steers of the following ages: About nine hundred head yearlings, about nine hundred two year olds, about-- three year olds, and about-- four year olds, at the following prices to wit: Yearlings, twelve dollars per head; two year olds, eighteen dollars per head. Said cattle to be delivered at Payette, Idaho, and Ontario, Oregon, free on board cars from twentieth day of May to the fifth day of June, 1896, at option of buyer, he to give twenty days' notice of time of delivery. ' The contract proceeded to provide for the condition in which the cattle should be delivered,-- that is to say, that they should be sound, healthy, fit for driving or shipment, etc.-- and were to be delivered in not less than train-load lots of 15 cars. It provided for the payment of the balance of the purchase price on delivery of the cattle and completion of the contract, and also that, if the vendors offered more than 1,800 head, the vendee would take the same up to 2,000 head, at the same prices, and upon the same terms as to delivery; and it concluded with the provision that 'the said B. F. Saunders hereby agrees not to place any other buyers in this territory for this class and age of cattle during the months of March, April, and May, A.D. 1896 ' The defendants in error brought this suit in the court below as plaintiffs, upon this written contract, which was annexed to and made a part of the complaint, alleging in their complaint that the defendant to the suit disregarded and broke the clause of the contract last above quoted, to the effect that he would not place other buyers in the territory referred to during the times stated, thereby rendering it impossible for the plaintiff to purchase within that territory at the prices stated in the contract a greater number of cattle, for sale and delivery to the defendant than is in the complaint afterwards stated. The complaint next alleges 'that plaintiffs have duly and diligently performed all the conditions of said contract on their part and have sold and delivered on the 31st day of May, 1896, to defendant five hundred and twenty-four yearling steers at twelve dollars per head, seven hundred and fourteen two year old steers at eighteen dollars per head, and eighty-eight three year old steers at 22 dollars per head, the aggregate value and purchase price being $21,076.00; that defendant has not paid said purchase price, nor any part thereof, except the sum of $4,000.00, on March 19th, 1896, advance and forfeit money as per said contract, and $16,061.00, on June 1st, 1896. ' The prayer is for judgment against the defendant for the sum of $1,015 and costs.

The answer of the defendant to the suit admits the making of the written contract set out in the complaint, denies any breach of its conditions on the part of the defendant, and denies the performance of all the conditions on the part of the plaintiffs. It denies that 88, or any other number, of three year old steers were delivered to or accepted by the defendant pursuant to the written contract, but makes no other denial of the allegations of the complaint respecting them. It alleges that the plaintiffs failed and refused to deliver to the defendant 562 head of one and two year old steers agreed to be sold to him in and by the written contract mentioned. And by way of counterclaim the defendant sets up the same written contract declared on, and alleges his performance of all the terms and conditions on his part provided for, and a partial performance of the plaintiffs' obligations thereunder, to wit, the delivery of 1,238 head of the cattle mentioned in the contract on the 1st day of June, 1896, at which time the counterclaim alleges the defendant, at the request of the plaintiffs, agreed to receive the remainder of the cattle stipulated for, to wit, 562 head, at any time during the month of June, 1896, and the plaintiffs agreed to complete the delivery thereof, under the terms of the contract, during that month. The counterclaim further alleges that at the time of the delivery of the 1,238 head of cattle on June 1, 1896, the defendant, at the request of the plaintiffs, paid to them, on account of the cattle so delivered and to be delivered under the contract, the sum of $14,122, and that 'by express agreement between the plaintiffs and this defendant the further sum of one thousand dollars ($1,000), which, upon the completion of said contract, would become due and owing to said plaintiffs on account of the cattle then and there delivered by them, was to be held by defendant to insure the complete fulfillment of said contract'; that subsequently to wit, on the 6th day of June, 1896, the plaintiffs abandoned the contract, and refused to further comply with its terms, by which failure the defendant was damaged in the sum of $2,100.

The bill of exceptions shows that the only evidence offered and received on the trial on the part of the plaintiffs was the written contract sued on, and the testimony of the plaintiffs to the effect that under the contract they delivered to the defendant, at Caldwell and Payette, on the 31st day of May, 1896, 'certain cattle, among which were 88 head of three year old steers; that upon the next day the parties met, and calculated the number of head delivered, and their value at the agreed contract price, which amounted to the sum of $21,015; that defendant paid them, in addition to the sum of $4,000 before paid as specified in the contract, the further sum of about $16,000, leaving the balance on the cattle so delivered of $1,015 unpaid, and no part of which has since been paid; that the number of one year olds and two year olds delivered was 562 head short of the 1,800 head called for in the contract; that during the delivery of these cattle plaintiffs informed defendant that they could not get or deliver any more cattle; that the defendant still wanted the rest of the cattle delivered; that the plaintiffs accepted the money paid to them as partial payment on the cattle delivered, because their obligations were out, and they needed the money to meet them, but that they did not consent to the retention of the balance of $1,015 as a guaranty for the delivery of more cattle, and that they did not promise to deliver any more cattle under the contract.'

The defendant testified in his own behalf, in substance, that he attended, on the 31st day of May, at Caldwell, Idaho, for the purpose of receiving from the plaintiffs the cattle to be delivered under the contract introduced in evidence by the plaintiffs, and that a part of the cattle were at that time delivered at Payette, Idaho, some miles distant, to the defendant's agent; that upon the following day the defendant and the plaintiffs met at Payette, and ascertained that only 524 yearling steers and 714 two year old steers had been delivered; that the defendant then and there notified the plaintiffs that he insisted upon the completion of the contract by the delivery to him of the remaining steers, and that he then informed the plaintiffs that he would make them a further partial...