Herzog v. Purdy

BRITT, C. On April 11, 1895, the parties entered into a contract whereby plaintiff agreed to buy and defendant agreed to sell certain salt hides, calfskins, pelts, and tallow of animals previously slaughtered, and thereafter, during said month of April, to be slaughtered by defendant in the course of his business of butcher. Plaintiff then paid to defendant the sum of two hundred dollars, and took the following receipt: "Received from M. Herzog two hundred dollars on account. All hides and pelts, April killing, to be delivered on or about May 1, 1895. J. S. Purdy.” By the terms of the contract the hides were to be paid for at four and one-eighth cents per pound; calfskins at thirty-five cents each; pelts (of sheep, it seems) at four cents per pound; tallow at three and one-eighth cents pep pound. This is an action for damages-for alleged breach of the contract by defendant in failing to deliver the goods. Verdict and judgment were for defendant.

At the trial there was evidence that defendant carried on his business at the town of San Bernardino, where the contract was made; that plaintiff resided elsewhere, and that, to obviate the necessity of plaintiff’s coming again to San Bernardino, it was agreed that one Rittler should in his behalf receive, pay for, and ship the goods. On April 2Sth, defendant notified Rittler that the hides would be ready for delivery at 9 o’clock in the forenoon of April 30th, and accordingly the latter attended at defendant’s slaughterhouse at the time appointed. The evidence was quite conflicting as to what occurred there; the testimony for defendant tended to show that Rittler objected to the condition of the salted hides and said he could not receive them, but would telegraph Herzog, the plaintiff, to come at once himself; also, that Rittler’s objections to the hides were not well founded. Defendant said to him: "Herzog appointed you his agent to receive these hides and they are shrinking every day they are here, and you. have to take them now or I will sell them to somebody else.” Rittler refused. Both he and defendant [101]forthwith sent telegraphic messages—Rittler summoning Herzog, defendant notifying a buyer of such commodities at Los Angeles that his hides were for sale. On the morning of May 1st the latter arrived, and defendant sold the hides to him; he sold also, to the same party it seems, the other property he had previously bargained to plaintiff. Herzog arrived in San Bernardino in the afternoon of May 1st, and, being unable to find the defendant, announced at his shop that he was ready to receive the goods he had bought; on May 2d he repeated the offer to defendant personally, and was informed that they had been sold. There was evidence tending to show that on April 30th defendant had on hand within the purview of the contract eight thousand five hundred and thirty-four pounds of salted hides, five thousand four hundred and eighty-four pounds of tallow, and a considerable number of pelts and calfskins. On said April 30th the market price of hides had advanced materially since April 11th, the date of the contract of sale. Defendant retained the payment of two hundred dollars he had received, claiming that it was forfeited to him.