The record-union., 1891-01-13

Filed January 5, 1911
Appeal from Superior Court San Luis Obs
pc county,. A. Gregg Judge
For appellant, Graves, Turner & Graves.
For respondent, Haggin & Van Ness, OF coun-
sci ]. NJ. Wilcoxson.
DEPARTMENT TWO.
LYNCH, Appellant,
WELBY, Respondent.
This action is for the recovery of So ,623
damages alleged to be sustained by reason of
AN alleged breach of Il contract of The parties.
by the defendants. The contract was in effect
Z tnat defendants would purchase of the plain
~ IN III the steers belonging to him on the 11th
Gay OF May, 1883. that We're three years old
and upwards, and that were then or that
would be merchantable beef by the 1st day OF
July, 1883, the number of which was esti-
mated by the parties to be about 800 head.
And tie parties further agreed that ii there
should arise any question between them as 10
what steers would make nserchantable beef
the question should be decided by arbitration,
each partyto select one arbitrator and il the
two could not agree, they should select third
to settle the question.
Pursuant TO this agreement plaintiff gath
cred his said band OF cattle, ald the defend
ants selected therefrofn 80 head of the largest
ana most choice steers OF said band, and paid
the paintif therefor at the rate OF $40 Per
head, and requested plaintiff To have another
and complete gathering OF the cattle ON the 1st
Gay OF July, 1883, at which time defendants
WoGiu take the remainder OF the steers as per
agreement, and plaintiff had gathered and
ready fof delivery the residue OF his band
consisting OF lI6 head OF steers, which he ill.,
sisted then, and Still insists, were good mer
chantablesteers. Defendants refused 10 accept
all OF said steers bat offered TO select from said
Dand only 50 many as in their opinion were
tnen merchantaDle bcef-1S, possibly 81
head, in all. Tncreupon plaintiff insisted upon
choosing arbitrators, as stipulated in said
agreement, to decide how many OF said steers
We're merchanfablC beef. Plaintiff chose one
William Eprerscn and the defendants one \
j. Harris, with the understanding if they
could not agree they should select q third per
son To act with them.
1t does not appear that the arbitratorS so
| selected ever decided that any of said steers
were merchantaDie beef, or that they ever
differed or failed TO agree upon how many
We're or Were not merchant,tble beef or tina!
| they ever selected q third person to act with
them. The only reason appearing in the rec
ord ;or not proceeding with the arbitration is
that the defendant, Judge, announced that hc
could not abide by the decision of the arbitra-
tors. lie SAID, according to the testimony oi
| one of the Witnesses that Lynch was not Will
ing to do anything toward settling the matter
and as far as he, Judge, was concerned, he
would not have another thing to do with the
cattle, and turned and rode out of the field
| That was evidently treated by all of the par
| ties rs u revocation by defendants of their
! agreement to arbitratc. About two weeks
after the failure to arbitrate plaintif sold / 1G
| head Of cattle to Lux 4 Miller for S29 GS per
head and this action Is prosecuted to recover
| the difference between the price which de-
fendants agreed to pay for cattle of the kind
and quality specified in their agreement with
plaintiff, and the price paid for the 176 head
! sold TO Lux Il Miller.
Whether the cattle which defendants refused
| to accept were of the kind and quality that
they agreed to take is question upon which
] there is q plain conflict of evidence, and We
cannot disturb the verdict of the jury upon
j that question.
| We think the instructions of the court placed
the matters in issue fairly before the jury
| Judgment and order affirmed.
SHARPSTEIN, j.
We concur:
| THORNTON, J.
| MCFARLAND, J.