Hunter v. Lee , 11 Kan. 292 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Lee sued Hunter to recover $4,027.24 damages, for an alleged failure on the part of Hunter to receive and pay for a lot of cattle according to contract. Hunter in answer to the petition, admits that in July 1870 he made a contract with Lee for the purchase of ,840 head of cattle, for which he agreed to pay three-and-three-fourths cents per pound, gross weight, on delivery at the depot of the Kansas Pacific Railway Co. at Topeka, Kansas, to be delivered and weighed on or before the first day of October 1870; also, that at the time of making said contract he paid Lee on the same $1,000, and that about the 21st of September 1870 he received on the contract 272 head of the cattle, amounting to $12,777.37, and that he paid Lee at that time, on the contract, $10,000. He denies all the other allegations in the petition. Hunter for a second answer, and by way of defense, sets out that the sale was by sample, and warranty, and he avers that the cattle were not according tp contract. And for a third defense, and by way of counterclaim, he sets up a contract of sale by sample and warranty, and claimed $10,000 damages for a failure on the part of Lee to deliver the cattle according to contract. To these several answers Lee interposed a general denial. The case was tried upon these several issues, by a jury, at the December Term 1871 of said court. ■A verdict was given in favor of Lee for $1,936.97, and judgment was rendered thereon by the court.

The questions presented for our consideration arise on the refusal of one, and the giving of another, instruction. If thé one given was correct it was right to refuse the other. Our inquiry therefore is limited to a simple matter. The instruction given was as follows:

“That upon the allegations made by the defendant (Hunter,) in his answer and the evidence he has offered, you cannot find that Hunter is entitled to damages for any breach of contract on the part of Lee.”

The third defense in the answer was substantially, that in July 1870, the plaintiff represented to him, defendant, that he was the owner of a large number of cattle, in three different lots of about 300 in each lot, and that he was anxious to sell the same to defendant; that plaintiff showed to defendant a sample of his cattle, and as an inducement to get defendant to purchase the cattle, represented to defendant that the residue of the cattle were as good as the sample shown; that defendant, relying on said representations, and believing them to be .true, agreed with the said plaintiff to buy of him 840 head of said cattle, and to pay therefor three-and-three-fourths cents per pound gross weight, to be paid for at the time and place of delivery, as alleged, provided said cattle were in every way as good, large and fat as they were represented to be, and upon no other terms, conditions or consideration whatever; that the said plaintiff then agreed to sell the same to defendant upon the terms and conditions aforesaid, and agreed to deliver and weigh the same to defendant at the depot of the K. P. Rly. Co. at Topeka, Kansas, on or before the 1st of October 1870; that defendant at the time of making the agreement paid plaintiff on said cattle, $1,000; that about the 21st of September 1870, the plaintiff delivered to the defendant 272 head of said cattle, and at that time the defendant paid the said plaintiff the further sum of $10,000. It is also averred in said answer, that the defendant duly performed all the conditions of said agreement on his part; that he has always been ready and willing to accept the residue of said cattle so purchased, and to pay the price he agreed to, but that the said plaintiff did not on the first day of October 1870, or at any other time, deliver or offer to deliver to the defendant the residue of said cattle as he agreed to. And defendant further averred that the residue of said cattle claimed to be owned by plaintiff, as aforesaid, were greatly inferior in quality and value to the sample or lot exhibited as aforesaid, and were wholly unfit and worthless to the defendant, of all which the plaintiff well knew when he made the representations aforesaid; that by reason of the failure of .the plaintiff to comply with and perform his said agreement, and by reason of the false and fraudulent representations of the plaintiff, he has sustained damages to the amount of $10,000. Hunter’s testimony as to the contract was, that “We parted with the understanding that if I did not see the other cattle I was to take them if the two herds we had seen were a fair sample.” He also testified that the cattle other than those he did take were inferior, of less value, unfit for the purposes for which he was buying, and in no ways equal to the representations of Lee, or to the cattle which he had seen. He also stated that he was ready and willing to receive and pay for cattle of the quality he had contracted for. He did not pretend that he was ready or willing or offered to receive the cattle as they were. Upon this answer and testimony could Hunter recover any damages ? We think not. The contract was a conditional one. The condition did not exist. Hunter was not to take the cattle unless they were as represented. They were not as represented. Therefore there was no sale. Lee’s representations were false, but no action will lie therefor. There was no breach of contract on his part. He agreed to sell these cattle. He was ready to complete the sale. Hunter was unwilling, and declined. A distinction must be noted between this contract and one to deliver so many cattle of a given quality. In that case if he failed to deliver such cattle there would be a breach of his contract. Here was a contract to deliver certain specific cattle. He was ready to deliver those cattle. Hence he was not in default. By reason of the falsity of his representations he could not compel Hunter to receive the cattle, nor recover damages for his refusal; nor could Hunter, declining to receive them, recover damages on account of such false representations. The judgment of the district court will be affirmed.

All the Justices concurring.