Curtin v. Morgan & Co.

HART, J.

This is an appeal by the defendant from a judgment rendered and entered in favor of the plaintiff and against the defendant.

The action arises out of a written contract entered into by and between the parties on June 1, 1919, for the sale of ninety head of cattle by the plaintiff to the defendant.

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The said contract provided that the plaintiff would sell to the defendant and that the latter would purchase and receive ninety head of “fat cattle” as follows: Seventy-five head of cows at seventy-five dollars per head; five bulls at seventy-five dollars per head; one bull at twenty dollars and nine head at a price to be later agreed upon or at the time of the selection of the cattle by defendant or its agent. Upon the execution of said contract the defendant paid to the plaintiff the sum of two thousand dollars on the purchase price. The contract further provided:

“All of said cattle to be selected by a representative of the buyer, and the prices hereinbefore stated include delivery F. O. B. cars at Warnerville. All stock for delivery are to be selected by a representative of the buyer in time for delivery as aforesaid. Said seller agrees that he will maintain, feed, and water and care for said stock and deliver them as herein provided, in a fat and merchantable condition, and that he will not deliver any swaybaeks, big jaws, dwarfs, or otherwise deformed or unhealthy stock, on this contract, and same shall be free and exempt from state and federal quarantine regulations, and free from all liens and encumbrances whatsoever; also that no stock shall be removed or sold from the above described livestock until after the delivery of all the stock included in this contract, without the written consent of the buyer; all stock to be shrunk per cent and ... . stood hours in a dry pen without -feed or water before weighing, and all s¡fcock to be dry and free from any foreign matter when weighed. These cattle are to be from eighty-four head at Jewel Ranch.”

The specific controversy between the parties is as to the seventy-five head of cows which were delivered to the defendant, there being no dispute as to the bulls delivered under the contract.

It appears that the plaintiff is an attorney at law, and that at the time the cattle were selected (on the twenty-fourth day of June, 1919) he was engaged in the trial of a case in the superior court of Alameda County. Because of being so engaged, the plaintiff, by his request, was represented, at the time of the selecting by and delivery of the cattle to the defendant, by his brother, Robert A. Cur-tin. The testimony shows that, on that occasion, the representative of the defendant selected sixty-five cows from