Brady v. Wilcoxson

By the Court, Niles, J.: The contract provided two separate compensations to the plaintiffs for their labor and expense in the care and keeping of the cattle.

First—Eight cents per pound on the net increase in the weight of the cattle at the time of sale over the agreed net weight at the date of the contract.

Second—Two thirds of the increase in the price the cattle should be sold for over and above eight cents per pound on the net weight at the date of the agreement.

These compensations must be considered as cumulative, [245]as there is nothing in the contract to show that either was to be received in lieu of the other.

We think it is the only reasonable construction of the contract that the weight and price of the cattle sold at San Francisco are to be estimated at the time and place of sale. The defendants reserved the right to sell the cattle at any time and upon their own terms. If they chose to sell at San Francisco or elsewhere, the plaintiffs were to pay two thirds of the whole amount of the expenses of driving and of sale. It is unreasonable to suppose that the plaintiffs would agree to bear this large proportion of the losses without participation in the gains. Considering the whole contract, it is clear to us that the provision that the cattle when sold or delivered were “to be weighed out at the corral of the parties of the second part,” applied only to such of the cattle as might be there sold by the defendants, and not to those which.might be driven and sold elsewhere.

By this construction the plaintiffs aire entitled to the sum of seven hundred and thirty-three dollars and twelve cents for increase in weight of the cattle, and the further sum of one thousand six hundred and seventy-seven dollars and forty cents as their share of the increase in price. From these amounts must be deducted the sum of one thousand two hundred and forty-two dollars and forty-eight cents, for payments and offsets as found by the Court.

The plaintiffs are not entitled to interest. Their claim was an uncertain and unliquidated demand. The amount due cannot be ascertained from the face of the contract, but is to be settled by process of law. On such demands, interest, eo nomine, cannot be allowed.

Judgment reversed and cause remanded with instructions to enter judgment for the plaintiffs for the sum of one thousand one hundred and sixty-eight dollars and four cents, in United States gold coin.