Rodgers v. Perez ( 1926 )

GILBERT, Circuit Judge

(after stating the facts as above).

The case is brought here without a bill of exceptions, and the only question presented concerns the proper construction of the lease.' It is the contention of the plaintiffs in error that the calves awarded to the defendants in error were within the restriction against selling, which provided that all female breeding stoek then on said ranch should remain. The court below gave consideration to the question of the meaning of the term “female breeding stqek,” and sustained defendants’ contention that heifers could not be so classed until they had sufficiently matured to be used for breeding purposes, or one year old, and reasoned that otherwise the term “breeding,” as applied in the lease to “stoek,” was meaningless, and that under the terms of the lease the lessee was empowered to sell or incumber female calves under one year old on July 1, 1923.

We are not convinced that there was error in that conclusion. The plaintiffs in error rely upon the fact that the court found ■ that at .the time of the sale the defendants in error knew that there were less than 499 head of cattle on the premises, and knew that the sale, the effect of which would be to reduce the number of cattle left on the ranch below the numbers mentioned in the power clause, was not authorized by the selling power in the lease. But to this it is to be said that there was no restriction upon the power to sell calves then on the ranch, which thereafter during the term of the lease might become cows. The 499 cows mentioned were intended to include all cows on the ranch at the date of the lease.

■ We find no error. The judgment is affirmed.