Beauchamp v. Archer

Ross, J.: On the 1st of April, 1880, the plaintiff contracted with the defendants for the sale by the latter to him of a lot of cattle of certain brands, which were then running with a larger herd on their rancho. The price agreed upon was twenty-two dollars and fifty cents per head for the steers, and twenty dollars per head for the heifers; and plaintiff paid to the defendants two hundred and fifty dollars on account of the purchase price. At the time of the contract neither plaintiff nor defendants knew how many cattle there would be of the description agreed on, nor was there any time fixed for the ascertainment of that fact or the delivery of and payment for them. On the 27th of May plaintiff notified the defendants that he would receive the cattle on the succeeding day, May 28th; and on that day went, with two employees, to the defendants’ rancho for that purpose. Plaintiff and defendants then got together the entire herd, consisting of two hundred and fifty head, out of which they selected those of the description mentioned in the contract, numbering twenty-six in all, and consisting of twenty-two steers and four heifers. When the twenty-six were so separated they were agreed upon as the cattle contemplated by the contract of April 1st. The parties then ascertained by computation that the balance of the purchase price was three hundred and twenty-five dollars, and the defendants thereupon tendered the plaintiff the cattle and demanded of him payment of that sum. The plaintiff [434]did not have the money, but offered the defendants a check for the amount on Grant, Lull & Co., payable two days after sight. Defendants refused to take the check in payment, and told the plaintiff if he did not pay them the money for the cattle they would turn them back with the herd—whereupon the plaintiff asked defendants to hold the cattle until he could go to Cambria (a distance of twenty miles) and get the money for them, or that defendants accompany him on the road with the cattle and he would get the money at Cambria, or sooner-if he could. The defendants having refused to accede to either of these propositions, the plaintiff left and the defendants turned the twenty-six head of cattle back with their herd. Several days afterwards, to wit, on the 2d day of June, the plaintiff returned to the defendants’ rancho and there tendered them three hundred and twenty-five dollars, and demanded possession of the cattle. The defendants refused to accept the money, or to make the delivery, and subsequently, but on the same day, offered to the plaintiff the two hundred and fifty dollars, received by them at the inception of the contract. This the plaintiff refused to take, and afterwards instituted this action to recover possession of the twenty-six head of cattle, or their value.