Hull v. Ray

SEAWELL, J.

This appeal is taken from a judgment entered in favor of plaintiff and respondent whereby a sale of twenty head of Jersey cattle made to respondent by appellant for a consideration of $3,500 was adjudged rescinded. The respondent’s offer to restore said cattle to the possession of appellant was rejected by him, and said cattle were subsequently sold by respondent for a sum less than the accrued charges incurred for their care and keep.

This case received the attention of the District Court of Appeal some time ago

(Hull

v.

Ray,

80 Cal. App. 284 [251 Pac. 810]), where the facts are quite fully set forth. The law as therein declared is the law of the case. Judgment went for appellant herein, and a reversal was ordered be

[166]

cause of irreconcilable findings on certain issues which in nowise affect the merits of the instant appeal.

All of said cattle appear to have been blooded stock and to have been registered, except four. The court held upon the first appeal, in construing the contracts of the parties, which consisted of two instruments, that the appellant failed and refused to deliver a bill of sale of said stock to respondent transferring said four unregistered head of cattle and failed and refused to deliver written warranty of title to any of said property sold, and that said failure and refusal constituted a breach of contract and furnished grounds for rescission by respondent pursuant to section 1689 of the Civil Code. The court also held that respondent’s claim that the failure or refusal of appellant to procure the transfer of registration of the blooded cattle upon the books of the American Jersey Cattle Club constituted grounds of rescission was untenable. The cause was retried and judgment went for respondent. Upon appeal to the District Court of Appeal, Third Appellate District, the judgment was reversed and the cause comes to this court upon an order of transfer. The principal reason for said transfer was to give further consideration to the conclusion reached by the learned author of the opinion to the effect that the notice of rescission was insufficient to support the action of rescission. The District Court of Appeal, upon a second consideration of the case, again found that the bill of sale and warranty of title were not executed; that respondent had fully performed all of the covenants on his part and had orally demanded of the appellant the delivery of the stipulated instruments, which demand was refused, and at the same time he offered to restore the cattle to appellant and attempted to rescind the contract. Pursuant to his purpose, respondent served upon the appellant a written notice of rescission containing the following language: “You will please be advised that John S. Hull does hereby rescind that certain contract of sale . . . [describing the same]. This rescission is made by reason of the failure of said Carl Bay' to deliver to the said John S. Hull a certificate of the American Jersey Cattle Club, showing transfer of the said, cattle, and by reason of the said Carl Bay’s failure to correctly certify to the date of service to certain of said cattle.”