Dennis v. Belt

By the Court, Currey, C. J.: The parties entered into a contract bearing date the 33d of April, 1863, which is in the following words :

“ Memorandum of agreement between William Dennis and George G. Belt—Belt agrees to take charge of Dennis’ sheep that are now on the east side of the San Joaquin, and provide pasture for them; and also to keep the herders in provisions until green grass comes again; and Dennis agrees to give Belt-all the wool he can shear from them all, to be sheared during the months of August and September, Dennis furnishing the herders, and Belt all the expenses attached to the shearing.”

The plaintiff alleged in his complaint that he delivered to the defendant under said agreement eight thousand nine hundred and sixty-three head of sheep, of which the defendant returned to him only seven thousand three hundred and thirty [249]—that is, sixteen hundred and thirty head less than the number delivered, which number, it is alleged in the complaint, the defendant failed and refused to deliver to the plaintiff, and therefore he demanded judgment for their value at one dollar and fifty cents a head, amounting in the aggregate to two thousand four hundred and forty-five dollars.

The defendant, in answer to the complaint, alleged that only eight thousand six hundred and twenty-two head of sheep was delivered to him, and denied that plaintiff performed his part of the agreement, but, on the contrary, he alleged that the herders which the plaintiff furnished were inefficient, and that at divers times while the sheep were in the possession of defendant, the herders abandoned their work without the knowledge or consent of the defendant, of which he, in due time, gave notice to the plaintiff and requested him to furnish herders according to the agreement, which plaintiff utterly failed to do. The defendant further alleged that he returned to the plaintiff seven thousand four hundred and thirty-three head of said sheep, which were all that he received, except the number lost by the negligence and inefficiency of the herders, and other reasonable and usual losses in such cases. And he alleged further that the loss was a reasonable loss, in view of the circumstances of the condition of the sheep when he received them, and of the negligence and inefficiency of the herders, whom it was the duty of the plaintiff under the agreement, to provide for the management and care of the sheep. The defendant further averred that the sheep did not yield as great an amount of wool at the shearing as they would have yielded had the plaintiff complied with his contract, and that by reason of his failure to comply with his agreement to furnish herders to take care of the sheep, the defendant was damaged by loss in the wool in the sum of fifteen hundred dollars, for which sum as damages he prayed judgment against the plaintiff.