Turner v. Goodman , 90 Ill. App. 339 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

We have not been favored by appellees with any brief, and may therefore assume, by analogy to decisions of this and the Supreme Court holding that parties failing to argue errors assigned upon the record have abandoned the same, that appellees, if they have not abandoned their claims under the decree in this case, are at least indifferent as to the result of this appeal.

We have, however, carefully read and considered the abstract of the record in this case', and have reached the conclusion that the. master, as well as the learned chancellor who entered the decree confirming the master’s report, proceeded upon a wrong theory as to the law governing the case, and that the report and decree in favor of the appellee Goodman, is not sustained by the evidence.

A reference to the master’s report shows that he held that inasmuch as Lacey failed to perform the pasture contract, by furnishing sufficient grass to fatten the cattle, that this goes to the entire consideration of the contract, and precludes Lacey or his assignee, Turner, from any right of recovery whatever, thus apparently leaving "out of consideration a rule of law that where a party has in good faith partially performed the terms and conditions of a contract on his part, and the other party has received the benefit of such partial performance, and does not or can not restore to the other the fruits of such partial performanee and place him in statu quo, then the consideration of the contract must he paid, less any damages suffered by reason of the failure to perform the contract. 2 Parsons on Contracts, p. 523, 529; Underwood v. West, 52 Ill. 397; Wolf v. Dietzsch, 75 Ill. 205; Smith v. Brittenham, 109 Ill. 540; Underwood v. Wolf, 131 Ill. 425.

The evidence shows that Lacey pastured all the cattle, near 3,000 in number, delivered to him by Goodman; that these cattle, except a small number, were delivered by Lacey, with Goodman’s consent, to his mortgagee and sold, thus giving to Goodman, without any dispute, the benefit of Lacey’s pasture to fatten this large number of cattle a whole season of six months, less twenty-four days, without any compensation, except a payment of $500 to Lacey, and without reference to any damage suffered by Goodman.

Moreover, so far as appears from the master’s report, he did not consider the question of damages to Goodman, nor is there any evidence in the record, so far as we have been able to discover, which would have justified the master or court in finding that Goodman had suffered any damages by reason of the alleged failure of Lacey to furnish sufficient grass for the cattle.

The contract is also indefinite in that it fails to provide that the cattle were to be pastured any definite time, and there is evidence to the effect that the season for fattening cattle in Indian Territory extended from April to November; that Goodman consented to a portion of the cattle being sold in July and the remainder on the 7th of October, thus leaving twenty-four days that the remaining portion of the cattle might have remained upon the pasture, and for ail that this record shows, fattened, and besides this, it does not appear that Goodman or his representative made any complaint as to the insufficiency of the grass until October 7th, when he agreed that the cattle might be sold by the complainant, although he was frequently before that time at the pasture, and his representative was continually, during the season up to that time, looking after the cattle and his, Goodman’s, interest in respect thereto.

From a careful consideration of the evidence we also are of opinion thattheclearpreponderanceof the evidence shows that Lacey did furnish sufficient grass to fatten the cattle if they had been allowed to remain upon the pasture the full season. In any event we think the evidence in this record is sufficient to preclude Goodman from claiming any damages in that regard.

For the errors indicated the decree is reversed and the cause remanded for further proceedings consistent with the views above indicated.

Reversed and remanded.