Griffiths v. Henderson

49 Cal. 566

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 4,346
• Status: Published

Opinion

By the Court, McKinstry, J.:

The general demurrer was to the whole complaint. The second count contains an averment that the defendant “ duly performed all the conditions of the contract on his part to be kept and performed.” This is a compliance with the statute, and the objection that the pleading is insufficient is not well taken, unless the contract sued on is void.

The District Court charged the jury, in effect, that by the terms of the written agreement the defendant promised to furnish “ female cattle ” sufficient in number to stock the land leased.

We cannot say this was an error. The word “ limited,” in the clause “the number not limited,” may be construed to be the equivalent of “fixed” or “specified.” To construe the contract as authorizing the plaintiff to fix the number, would place in his hands the power of securing the use of the premises for the term of five years, for a rent merely nominal. Taking the instrument as a whole, it would seem to have been the intention of the parties to it that all of the lands were to be used as a dairy farm— the lessor furnishing kine, in proper number and quality, for carrying into effect the main design of the agreement.

Judgment and order affirmed.

Mr. Justice Niles did not express an opinion.