Turner v. Kearney , 116 Cal. 62 ( 1897 )

McFarland, J., dissenting.

I dissent. It will be observed that appellant’s real contention is that respondent should have finished harvesting within forty days after the first grain was ripe; that for this purpose he should have used more than one harvester; and that because he did not use more than one harvester, and did not complete the harvesting within the forty days, therefore he failed to “ harvest all said grain in a, thorough and farmer-like manner, without waste or unnecessary loss.” But respondent did not contract to harvest the grain at any particular time, except that it should be done “ during the current season of .1893,” and it is clear that it was done within that season. He did not contract that he would use more than one eighteen-foot combined harvester. He began to harvest as soon as the grain was ripe and fit for harvest, with an eighteen-foot combined harvester, and thereafter worked “ continuously until the entire harvest was completed.” While he was so engaged he did the work “ in a thorough and farmer-lilce manner, without waste or unnecessary loss.” He, therefore, complied with his contract. Ho doubt it would have been to appellant’s advantage if respondent had put on two or three or a dozen eighteen-foot combined harvesters, and had completed the work of harvesting within a week or two. But he did not contract so to do; and appellant did not require or ask any such a covenant. There is no provision in the contract that respondent should finish the work at any particular time other than during the current season; and the only other provision as to “delay” is that respondent should commence as soon as the wheat should be fit to cut, and should continuously prosecute the work until the harvesting was finished. This he did. Therefore, in my opinion, the court below properly construed the contract, and the judgment and order should be affirmed.