Walter v. Reed

• Decision Date: 18 May 1892
• Parties: WALTER ET AL. v. REED ET AL.
• Court: Nebraska Supreme Court

34 Neb. 544

52 N.W. 682

WALTER ET AL.

v.REED ET AL.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

1. Where a party sold 150 fat cattle, at 3 1/2 cents per pound, to be delivered on a day named, and received $500 as part of the purchase price, the remainder to be paid upon the delivery of the cattle, held, that the delivery of the cattle and payment therefor were concurrent acts, and that the proof showed that the purchaser did not have the money with him to pay for the cattle, although he may have had credit in a distant bank; that he did not offer to make payment in money.

2. If a purchaser has advanced money in part performance of a contract, and, without fault on the part of the seller, refuses to proceed, the seller being ready and willing to perform on his part all the stipulations of the agreement, the purchaser cannot recover back what he has paid.

3. Instructions set out in the opinion held to be erroneous.

Error to district court, Thayer county; MORRIS, Judge.

Action by Reed & Gerard against Walter Bros. to recover for an alleged failure to deliver certain steers according to contract. Verdict and judgment for plaintiffs. Defendants bring error. Reversed and remanded.O. H. Scott, W. O. Hambel, S. L. Geisthardt, and Charles S. Lobingier, for plaintiffs in error.

Manford Savage, for defendants in error.

MAXWELL, C. J.

This is an action by purchasers against the seller to recover for an alleged failure to deliver 150 fat steers according to contract. On the trial of the cause the jury returned a verdict in favor of the defendants in error for the sum of $1,000, upon which judgment was rendered. It appears from the record that Reed & Gerard, who were stock men, entered into a written contract with the Walter Bros., who were engaged in a similar business, by the terms of which the Walter Bros. agreed to deliver to Reed & Gerard, 12 hours off feed and water, 150 head of good, smooth grade native 2 and 3 year old steers, none to weigh less than 900 nor over 1,050 pounds, at Davenport, Neb., between April 20 and May 5, 1888, at buyer's option. Reed & Gerard paid the sum of $500 on the contract at the time of its execution. The contract, as first executed, expressed no price at which the cattle were to be delivered. Afterwards, by mutual consent, a clause was added fixing the price at 3 1/2 cents per pound, it appearing that this had been the price intended. Walter Bros. collected 152 head at their farm near Davenport, the place of delivery, and notified Reed & Gerard that they were ready to deliver. Gerard, in response to the notice, appeared and examined the cattle on the evening of May 4th. They were shut off from feed and water, Gerard assisting in the operation, and weighed them early in the morning following; but Gerard did not take the cattle away with him. The cattle were never taken by Reed & Gerard, but remained in the possession of Walter Bros. for some months thereafter. Reed & Gerard for their cause of action contend that the cattle were not of the kind required by the written contract; that a large number of them would run in weight outside the limits specified in the contract; that the Walter Bros. did not have the requisite number of the size and weight for delivery at the place designated; and that for this reason, and no other, they refused to take the cattle, and pay the balance of the purchase price; and for all of which they claim damages in the sum of $2,000. Walter Bros., for their defense, maintained that, after the original written contract had been assigned, they discovered that it would be extremely difficult to comply strictly with its terms; that on the occasion when the clause expressing the price to be paid was added, which was done at Gerard's request, this contract was modified by an oral agreement, according to which they were required to furnish cattle whose average weight only should be between 900 and 1,050 pounds, and Reed & Gerard were to advance a further sum of $1,000 on April 1st, and that Reed & Gerard rented a pasture of them for the sum of $275, to be paid on April 1st; that they purchased and collected the cattle pursuant to this agreement, and had them ready for delivery on the 4th day of May, 1888; that Gerard appeared and examined the cattle, and was well satisfied with them, and accepted them, but that Reed & Gerard had no money to pay for the cattle, and failed to pay or tender the amount which was then due; and they claim damages in the sum of $1,150. The plaintiffs in their reply deny that the original contract was ever modified orally in any way. In the first paragraph of the petition the defendants in error allege “that at Davenport, Neb., on January 24, 1888, the defendants sold to plaintiffs the following described personal property, to wit, 150 head of good, smooth grade 2 and 3 year old steers, none to weigh less than 900 nor more than 1,050 pounds, for the sum of 3 1/2 cents per pound, said cattle to be delivered at Davenport, Neb., between April 20 and May 5, 1888, at the option of the plaintiffs; the plaintiffs paying to the defendants thereon at the time they purchased the same the sum of $500, the balance to be paid on the delivery of said cattle to the plaintiffs as aforesaid.” This is denied in the answer.

J. J. Walter, one of the plaintiffs in error, testifies that on the evening of May 4th Mr. Gerard came to take the cattle away on the next day. His direct testimony as to what was done is as follows: “He [Gerard] made a specialty of chasing off every steer in the yard, and we went through the whole yard, and when we came to one white-headed stag I told him he need not take that under the contract; and then we had a dun steer, weighing 700 pounds, and I told him he need not take that; but he said he would rather have them, as he wanted to go away. He said, ‘I will take the steers; every one that you have got.’ Question. Did you have 150 besides these? Answer. Yes, sir; I had 152 cattle. Q. What did you do then? A. Then after we went out there, and after he consented to take these steers, and as we passed in through the gate, he wanted us to stop, and when we came around he drew out a letter of some kind. I could not read it, nor my brother could not read it, but he tried to explain what it was, and he said he would have to go to the bank to make arrangements, and I would have to go along to get this money to pay for the cattle; and between four and five o'clock I and Gerard went to the bank of Davenport,--the People's Bank,--and when I came in I introduced Pratt to Gerard. Q. Who is Pratt? A. Cashier of the Davenport bank; and he told him he wanted to make some arrangements to pay for these cattle; that they suited him. He said, ‘They suit me, and are all right;’ and Pratt and he had some conversation, and he handed that letter to Pratt, but he could not make out what it was,--he could not make out what the signature was; he tried to read it himself. We supposed it was written in a hurry. Q. Go on and state...