Riley v. Du Bois

14 Ill. App. 236, 1883 Ill. App. LEXIS 174

• Court: Appellate Court of Illinois
• Decided: February 29, 1884
• Status: Published

Opinion

Laoey, P. J.

This suit was brought by the appellant against the appellee to recover the price of a cow, sold by appellant to appellee for four cents per pound, live weight; and she was picked out from among others in the pasture of appellant, and was to be weighed on the latter’s farm on his scales. It appeared to be the intention that she should be paid for when taken away. This took place on Thursday, and the next morning appellee’s man and agent came down to the farm, and they caught the cow and put appellee’s ropes on her, but she was unmanageable and broke loose from the men with the rope on her and they could not handle her. She then ran onto the neighboring farm of Fugate, where she was pursued by appellant’s aud appellee’s agents, and appellant caught and tied her to some willows, when appellee’s agents agreed to come down that evening or the next day and kill her where she was, but did not come until Sunday morning following, when, as appellee claims, but is denied by appellant, they agreed that they would kill her and give seven cents per pound dressed meat; but afterward, when they went on Sunday morning to look after the cow she was found dead. If the cow was accepted by appellee where tied, the delivery was complete and the loss resulting from the death of the cow would fall on appellee, no difference whether the price was paid or not; and the fact that the price was agreed on, if it was, on Sunday morning before they went to look at the cow where left tied, could make no difference, or change the status of the parties. This fact and principle of law was ignored by appellee’s instruction Ho. 5, which was erroneous and highly misleading.

At the time the cow was tied at the willows, appellee agreed to kill her there, and employed Fugate to water her, and she was tied with appellee’s ropes. By the agreement to kill the cow at the willows any claim appellant might have for payment before delivery was waived, of necessity; because, as the matter then stood, the price could not be ascertained because she could not be weighed on the scales. It must have been the intention that the title to the cow should pass as manifested by the agreement to kill her, and appellee’s putting Fugate in charge of her. It appears to us the verdict was manifestly against the weight of the evidence.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.