Olsen v. Port Huron Live Stock Ass'n , 1896 Mont. LEXIS 285 ( 1896 )

Hunt, J.

The real question in this case, and the one treated by the briefs as decisive, is whether plaintiffs are liable to the defendant on that clause in the contract of sale of the sheep which provided that the ■ sheep sold were to be ‘ ‘ in healthy condition at time of delivery. ’ ’ ¡ The solution, of the question-involves this simple inquiry : Are ewes in an unhealthy com dition because pregnant in October and the three months following ? The district court decided • they were not, and we affirm that view.

When the plaintiffs and defendant agreed that the sheep to be sold were to be in healthy condition at time of delivery, they meant healthy as opposed to diseased condition-, ■ — that is,, that the sheep were to be free from-disease; such, for instance, as scab or physical ailments or impoverishment not incidental to a band of sheep in normal and sound state of health. We do npt believe that because it happened that certain of the ewes were pregnant at a particular season of the year such condition was by itself an unhealthy one. Generally speaking, fecundity in animals whose value is greatly enhanced by capabilities of an annual increase by offspring would be evidence of good health, as doubtless sterility would be evidence ■ of ill health. That the young, if not prematurely born, are dropped at any particular season, has no relation to the condition of health of the ewes which drop them. ■ The opportunity for conception may have been unwfcely, or even' negligently,* given, but the fact of conception is not evidence of ill health' or disease. Suppose the band .of sheep had been delivered by: the defendant in April, and it was agreed that the sheep were in healthy condition, but suppose that in April or May, when by common knowledge the lambing season prevails in Montana, the ewes did not drop their lambs, but did drop them in July thereafter; could the purchasers of the band sustain an action against the vendors upon the ground that the sheep were not healthy because the ewes were not pregnant at the particular season in which they generally are supposed to be in this latitude and climate ? Manifestly not. It would be said at once ‘ that the condition of the sheep had nothing whatsoever to do with the health of the ewes.

The district court therefore, correctly.excluded.the evidence of the witnesses by whom it was proposed to show that lambing in January and February would be dangerous to the lives of the ewes and lambs. The words “healthy condition, ” used in the contract, required no extraneous explanation. They were presumably used in their primary and general acceptation. Moreover, there was no offer by defendant to prove that they had a local, 'technical, or otherwise peculiar signification, or that they were so used and understood in this particular instance. The ccurt cannot go beyond the fair import of the words in the contract, nor can we add any new warranty not contemplated by the parties to the agreement.

The defendant did not offer any evidence to sustain its aver-ments of negligence on the part of the plaintiff, nor did it rely upon or prove false representations or deceit or misrepresentations. The controversy hinged upon the construction of the words of the contract itself. The suggestion of the appellant that the arbitration agreement entered into between the parties tends to place a construction upon the contract favorable to the appellant is not sound. We regard this agreement as one of extension containing a recognition of the fact that differences had arisen in relation to the claim of appellant under the terms of the original contract, and that for the purpose of settling such differences the parties agreed to submit the matter of any damages, if any there were, to arbitration. The arbitration was not had. This action is to determine just what was to have been left to arbitration. Appellant was not injured by failure to arbitrate, and makes no 'claim that it was.

There is nothing in the language of the agreement which would warrant the court in saying that the parlies understood the words ‘ ‘healthy condition’ ’ to mean that the ewes were not to be pregnant at the time they were delivered.

We find none of the assignments well taken. Judgment affirmed.

Affirmed.

PembertoN, C. J., and De Witt, J., concur.