Hoke v. Wood

Bowie, C. J., delivered the opinion of this Court. The appellees sued the appellant in this case, on the 19th of April, 1864, for damages, for an alleged breach of a special verbal contract to sell and deliver, on the 18th of April, 1864, thirty-six head of cattle, at the price of $58 per head, amounting to $2,088, which the plaintiffs aver they tendered to the defendant, who refused to accept the same and to deliver the cattle as agreed. The defendant (the appellant) pleaded four pleas : 1st. That he never promised as alleged. 2nd.

That he never made such an agreement. 3rd. That there was no delivery or earnest, or part payment to bind the bargain or any note or memorandum in writing of the supposed contract. 4th. That the plaintiffs never made any legal tender, as the plaintiffs have alleged. ⁴⁵⁹ Issues being joined, at tbe trial the plaintiffs and defendant offered evidence and submitted to the Court several prayers, upon tbe rejection and granting of which, three exceptions were taken, two by tbe appellant and one by the appellees. The appellant’s first exception is taken to the rejection, by the Court of a series of prayers numbered 2, 3, 4, 5,6, Y, 8, 3, 10, which announce propositions the reverse of those given by the Court, in their adoption of the appellees’ prayer, the granting of which constitutes the appellant’s second exception.

In considering the one, we shall, there» fore, incidentally dispose of the other. The substance of the appellant’s prayers is: 1st. That there is a material variance between the contract described in the appellees’ nar. and that proved. 2nd. That unless the jury shall find from the evidence, that the contract declared -on was made as alleged, the plaintiffs are not entitled to recover under the pleadings and evidence an the case. 3rd.

There was no sufficient evidence of any earnest being given to hind the bargain. 4th. There was not sufficient evidence of a legal tender of the amount of the purchase money. The necessity fo-r considering the exception taken on the part of the appellees, will depend upon the result of our inquiry into the foregoing propositions of the appellant. As to the first proposition, that there is a material variance between the contract declared on and the contract proved by the plaintiffs, all the witnesses who speak on the subject concur, that on the 16th of April, 1864, the plaintiffs and defendant agreed on $58 per head for thirty-five head of cattle, to be taken away on the 18th.

The alternative, “or six cents per pound if not taken away until Friday,” is proved only by some of the plaintiffs’ witnesses. It is not necessary to sot out more of the alleged contract than pertains to tko ⁴⁶⁰ obligation, tbe breach of which is complained of; if the alternative qualifies the obligation, then the whole should be set out according to its legal effect or tenor. 1 Chitty’s Pleading, 304, in marg., 1 1th Amer. Ed. The appellees suing in this instance for non-delivery on Monday, the 18th instant, the residue of the