Mr. Chief Justice Breese
delivered the opinion of the Court:
This was an action of assumpsit, brought to the Circuit Court of McLean county, by Silas Colvin and James Funk, against John Weedman, George W. Hand and Philip Weed-man, to recover back $1,000, paid by the plaintiffs to the defendants on “ a cattle contract,” and a verdict for the defendants. A motion for a new trial was overruled, and judgment rendered on the verdict.
To reverse this judgment, the plaintiffs appeal to this court, assigning various errors.
The contract between the parties was in writing, and was as follows:
“ Know all men by these presents, That we, George W. Hand and Philip Weedman, of Humboldt county, State of Iowa, have this day sold to Silas Colvin and James Funk, two hundred head of steers, from three to six years old. There is' to be no stags or very rough oxen in the entire lot. The cattle are to be delivered as follows, to-wit: . The entire lot from the first to the tenth of September, at the option of the buyers, and to be delivered to Colvin and Funk, at either Hart & Fuller’s, or at Fort Dodge scales, in Webster county, or at Bidgeport scales, in Boone county, Iowa. The cattle are all to be put in a dry lot at sundown, and remain there without feed or water until sunrise next morning, before weighing. After the cattle are weighed, said Hand and Weedman are to send men to drive all said cattle to the nearest railroad station, from which the cattle are to be shipped, but they are not to be held accountable for accident or loss after the weighing. Said Colvin & Funk are to pay us five dollars and fifty-five cents per one hundred pounds for said cattle, gross weight, on delivery.
“ Bloomington, Ill., May 23d, 1867.”
On the day of the date of the contract, plaintiffs paid $1,000 thereon.
By request of the plaintiffs, made in August, the time for the delivery of' the cattle was postponed to the 15th of September.
The right of the plaintiffs to recover, depends upon their showing a readiness to perform on their part, and of failure on the part of the defendants.
There were three places specified in the contract, where the cattle should be delivered, either at Hart & Fuller’s or Fort Dodge, both in Webster county, where forty head of the cattle were, or at Ridgeport scales in Boone county, where one hundred and sixty-nine head were, under the care of Philip Weedman, who was there herding them. These places were sixty-five miles apart, and by the contract, it was at plaintiffs’ option at which of these places they should be delivered.
Colvin visited Hand in Iowa, the eighth of September, and in their conversation about the cattle, he told Hand he was not prepared to take them all, that he had not the money to pay for them, and got Hand’s consent that he should ship two or three car loads without paying for them, he being allowed to pay John Weedman, at Bloomington. It was then agreed that Colvin should go to Boone and see the cattle Philip Weedman was herding, and when he had determined what he would do he should give Hand notice, so that the cattle might be collected in one bunch and driven to the scales. Colvin, with one Crose, acting on the part of Hand, who was to introduce Colvin, as he was a stranger to Weedman, started to Boone county, and when Boonesborough was reached, Crose, having some other business, declined going further, and signed a letter or order which Colvin wrote, directed to Weedman, apprising him of this new arrangement with Hand. Colvin proceeded on to the herd, and there, on the tenth, saw Philip Weedman, and looked through the cattle. He returned on the thirteenth, but did not inform Weedman of this new arrangement with Hand, but made the impression on him that he had come to receive and pay for the cattle. He had then but about two thousand dollars with him. Willis’ scales was then agreed upon as the place for weighing. This was on Friday, the thirteenth of September. By driving on Saturday and Sunday, during which days there was a heavy fall of rain, Willis’ was reached about dark, Sunday evening, and the cattle put in a lot of about one and adialf acres. Colvin was there and saw the lot. There was a pond of water in it, caused by the rains, sufficient to water three hundred head.
It is evident from these facts, that Weedman was acting under the impression that Pland had agreed with Colvin that he should deliver the one hundred and sixty-nine head he had in charge to Colvin, whereas, under this agreement with Hand, which Colvin concealed from Weedman, he was entitled to receive but two or three car loads—some sixty head— and if he concluded to take the whole number contracted for, he was to give Hand notice, so that the herd in Webster county, at Fort Dodge, might be consolidated with Weedman’s herd, and so driven together to the scales. This notice Colvin never gave, but permitting Weedman to act on the false impression he had produced upon him by his conduct, and his failing to show the writing which Grose, under the authority of Hand, have given him to show to Weedman, he sought, by this appearance of a readiness to receive the cattle, to put defendants in default, so that he himself might escape from the contract. Accordingly, the next morning, Monday, 16tli, seeing the cattle in the lot, and being told by Weedman they were for him, except two oxen and a cow, which they did not propose to put in, Colvin said, without stating any particular objection, that he would not take.them—that they did not fill the contract. It is in proof that, save a few head which Weed-man proposed should be thrown out, the rest of the cattle were the best kind of Iowa cattle, and this, by the admission of Colvin himself. It is not denied, that Colvin, at this time, was not prepared to pay for the cattle, and there is evidence tending to show he wanted to get out of the contract.
It is very evident defendants could not be in default for failing to deliver two hundred head of cattle, nor did Colvin make the objection there was not that number at Willis’; the defendants could not be put in default on this account, for the reason, Colvin had not notified Hand of his final determination, as the proof shows he had promised to do. This notice was important, as the herds were separated, and time was required to enable defendants to consolidate them, and drive them, by the appointed time, for delivery. When Colvin parted from Hand, at Fort Dodge, the arrangement was, that Colvin, after seeing the cattle in charge of Weedman, in Boone county, should then determine whether he would take two or three car loads, and pay John Weedman for them in Bloomington, or take the whole, and notify Hand accordingly. His right to demand the two hundred head depended upon his giving this notice to Hand, which he did not give.
The proof is conclusive, that Colvin, when at Willis’, had not the money to pay for the cattle, not even for the bunch offered to him by Philip Weedman. This, of itself, would defeat the plaintiffs’ claim to recovery.
But did not the cattle offered fill the contract ? There can be no doubt about this, even on the admission of Colvin. The exceptionable ones in the lot, Weedman proposed to throw out, and when thrown out there is left no doubt that the remainder filled the contract.
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Mr. Chief Justice Breese
delivered the opinion of the Court:
This was an action of assumpsit, brought to the Circuit Court of McLean county, by Silas Colvin and James Funk, against John Weedman, George W. Hand and Philip Weed-man, to recover back $1,000, paid by the plaintiffs to the defendants on “ a cattle contract,” and a verdict for the defendants. A motion for a new trial was overruled, and judgment rendered on the verdict.
To reverse this judgment, the plaintiffs appeal to this court, assigning various errors.
The contract between the parties was in writing, and was as follows:
“ Know all men by these presents, That we, George W. Hand and Philip Weedman, of Humboldt county, State of Iowa, have this day sold to Silas Colvin and James Funk, two hundred head of steers, from three to six years old. There is' to be no stags or very rough oxen in the entire lot. The cattle are to be delivered as follows, to-wit: . The entire lot from the first to the tenth of September, at the option of the buyers, and to be delivered to Colvin and Funk, at either Hart & Fuller’s, or at Fort Dodge scales, in Webster county, or at Bidgeport scales, in Boone county, Iowa. The cattle are all to be put in a dry lot at sundown, and remain there without feed or water until sunrise next morning, before weighing. After the cattle are weighed, said Hand and Weedman are to send men to drive all said cattle to the nearest railroad station, from which the cattle are to be shipped, but they are not to be held accountable for accident or loss after the weighing. Said Colvin & Funk are to pay us five dollars and fifty-five cents per one hundred pounds for said cattle, gross weight, on delivery.
“ Bloomington, Ill., May 23d, 1867.”
On the day of the date of the contract, plaintiffs paid $1,000 thereon.
By request of the plaintiffs, made in August, the time for the delivery of' the cattle was postponed to the 15th of September.
The right of the plaintiffs to recover, depends upon their showing a readiness to perform on their part, and of failure on the part of the defendants.
There were three places specified in the contract, where the cattle should be delivered, either at Hart & Fuller’s or Fort Dodge, both in Webster county, where forty head of the cattle were, or at Ridgeport scales in Boone county, where one hundred and sixty-nine head were, under the care of Philip Weedman, who was there herding them. These places were sixty-five miles apart, and by the contract, it was at plaintiffs’ option at which of these places they should be delivered.
Colvin visited Hand in Iowa, the eighth of September, and in their conversation about the cattle, he told Hand he was not prepared to take them all, that he had not the money to pay for them, and got Hand’s consent that he should ship two or three car loads without paying for them, he being allowed to pay John Weedman, at Bloomington. It was then agreed that Colvin should go to Boone and see the cattle Philip Weedman was herding, and when he had determined what he would do he should give Hand notice, so that the cattle might be collected in one bunch and driven to the scales. Colvin, with one Crose, acting on the part of Hand, who was to introduce Colvin, as he was a stranger to Weedman, started to Boone county, and when Boonesborough was reached, Crose, having some other business, declined going further, and signed a letter or order which Colvin wrote, directed to Weedman, apprising him of this new arrangement with Hand. Colvin proceeded on to the herd, and there, on the tenth, saw Philip Weedman, and looked through the cattle. He returned on the thirteenth, but did not inform Weedman of this new arrangement with Hand, but made the impression on him that he had come to receive and pay for the cattle. He had then but about two thousand dollars with him. Willis’ scales was then agreed upon as the place for weighing. This was on Friday, the thirteenth of September. By driving on Saturday and Sunday, during which days there was a heavy fall of rain, Willis’ was reached about dark, Sunday evening, and the cattle put in a lot of about one and adialf acres. Colvin was there and saw the lot. There was a pond of water in it, caused by the rains, sufficient to water three hundred head.
It is evident from these facts, that Weedman was acting under the impression that Pland had agreed with Colvin that he should deliver the one hundred and sixty-nine head he had in charge to Colvin, whereas, under this agreement with Hand, which Colvin concealed from Weedman, he was entitled to receive but two or three car loads—some sixty head— and if he concluded to take the whole number contracted for, he was to give Hand notice, so that the herd in Webster county, at Fort Dodge, might be consolidated with Weedman’s herd, and so driven together to the scales. This notice Colvin never gave, but permitting Weedman to act on the false impression he had produced upon him by his conduct, and his failing to show the writing which Grose, under the authority of Hand, have given him to show to Weedman, he sought, by this appearance of a readiness to receive the cattle, to put defendants in default, so that he himself might escape from the contract. Accordingly, the next morning, Monday, 16tli, seeing the cattle in the lot, and being told by Weedman they were for him, except two oxen and a cow, which they did not propose to put in, Colvin said, without stating any particular objection, that he would not take.them—that they did not fill the contract. It is in proof that, save a few head which Weed-man proposed should be thrown out, the rest of the cattle were the best kind of Iowa cattle, and this, by the admission of Colvin himself. It is not denied, that Colvin, at this time, was not prepared to pay for the cattle, and there is evidence tending to show he wanted to get out of the contract.
It is very evident defendants could not be in default for failing to deliver two hundred head of cattle, nor did Colvin make the objection there was not that number at Willis’; the defendants could not be put in default on this account, for the reason, Colvin had not notified Hand of his final determination, as the proof shows he had promised to do. This notice was important, as the herds were separated, and time was required to enable defendants to consolidate them, and drive them, by the appointed time, for delivery. When Colvin parted from Hand, at Fort Dodge, the arrangement was, that Colvin, after seeing the cattle in charge of Weedman, in Boone county, should then determine whether he would take two or three car loads, and pay John Weedman for them in Bloomington, or take the whole, and notify Hand accordingly. His right to demand the two hundred head depended upon his giving this notice to Hand, which he did not give.
The proof is conclusive, that Colvin, when at Willis’, had not the money to pay for the cattle, not even for the bunch offered to him by Philip Weedman. This, of itself, would defeat the plaintiffs’ claim to recovery.
But did not the cattle offered fill the contract ? There can be no doubt about this, even on the admission of Colvin. The exceptionable ones in the lot, Weedman proposed to throw out, and when thrown out there is left no doubt that the remainder filled the contract. Colvin, however, made no specific objection to any of them, contenting himself with saying they did not fill the contract.
It is ingeniously argued by appellants’ counsel, that his objection included every objection which, at the time the cattle were tendered, could not be obviated. It included an objection to all cattle which were stags, or very rough oxen, or not from three to six years old, or which had remained over night in a lot with a pond of water in it. None of these objections, they say, could have been obviated that day, and therefore it was not necessary for Colvin to say anything, more than that he would not receive that lot of cattle, because they did not fill the contract. We do not think so. Weedman offered to supply, by others, the cattle which were objectionable, as being stags, being very rough, or over six years old. He told Colvin to throw them out, and as to the other objection, if it was an objection, that they had been in a lot "where there was water, over night, if Colvin really desired to comply with his contract, this could have been obviated by postponing weighing them for a few hours. Colvin’s own witness, Cheney, testified that Weedman came up to Colvin when he was about to start away, and said to him he had better take the cattle, to which Colvin replied that he knew his own business. Weed-man then said he was going to weigh the cattle, and if there were any in the lot that did not come up to the contract, he would throw them out. If, however, this objection had been made, it could have been obviated by delaying the weighing a few hours.
But, on the proof, Colvin was not entitled to these cattle; under the new arrangement with Hand, proof of which he had in his pocket, but failed to show Weedman, he was only entitled to take two or three car loads of them—some fifty or sixty—and that, too, without then paying for them. There were, certainly, that number which would fill the contract. The plaintiffs cannot be allowed, under these circumstances, as proved, to put defendants in default. The facts show they were the defaulting party, and being so, they have no claim to recover back the advance payment. The law of the case was well stated by the court in the instructions given for the defendants, and we can perceive no error in the record.
The judgment must be affirmed.
Judgment affirmed.