Amador ledger., 1907-11-01
MCFARLAND
VS.. O'NEfL
Full Text of Important Decision
REGARDING Purchase of Hay.

Z
peal was upon questions of law and
fact and the case was tried de novo.
The action was to recover the sum
OF s63.47 claimed to be balance due
for hay furnished defendant at his
special instance and request. The
answer denies all the allegations of
the complaint and sets up a counter
claim alleging that plaintiff and de-
PENDANT entered into an express con-
tract by the terms of which plaintiff
was to deliver to defendant at Jack
son fifteen tons of hay at an agreed
price of 10 per ton; that he had de-
livered 14770 pounds CT hay but refus-
ed to deliver the remaining Is, $50
pounds. That he had paid on ac-
count thereof $50, and was ready and
willing to pay the balance of the puI-
chase price amounting to S175, when
ever plaintiff should deliver the re-
mainder of the fifteen tons of hay,
and that by reason of the failure OF
plainiff to deliver the fifteen tons
defendant had been damaged to the
extent of s63.O7.
The evidence at the trial showed
that plaintiff agreed to sell to de-
fendanJ and defendant agree to pur-
chase from him from twelve to fifteen
tons of hay at Sis per ton.
There was no agreement concern
ing the mode of ascertaIning the
weight of the hay; whether it was to
be weighed or taken according to the
weight marked on the tags.
Plaintiff hauled some hay that he
had purchased at the Head ranch, to
the defendants barn and some to
the livery stable of O'Neil and
Podesta in jackson and hauled some
from his own ranch to the livery
stable. The livery stable proprietors
weighed the hay. The hay from
Heads ranch weighed up to the tag
weight and was accepted. but the hay
from the Mcfarland ranch fell
short an averge of twenty pounds in
each bale and they refused to accept
it at the tag weight. Plaintiff there
upon told defendant the hay was fall
ling away short of the tag weight and
that unless he would accept it at tag
weight be would not haul any more.
Defendant informed him that he
would be willing to allow five. or six
pounds off on each bale but no more
plaintiff then refused to have any
more.
Defendant contends that this con-
stituted a breach of contract and
bases his conterclaim for damages
upon it.
The first mention of the manner OF
ascertaining the weight of the hay
was at this time, and therefore there
could be no breach of a condition
that was not mentioned in the con.
tract and that had never existed.
Defendant therefore had no cause Of
counterclaim but further than this
there was no evidence before the
court that defendant bad any con
tract with any one to sell hay that
he had to fulfill.
The evidence shows that he procur
ed hay elsewhere and sold it at al
advance. At all events there was M
contract to sell any given quantity O
hay that either plaintiff or defendant
could have enforced against the Other
There remains but one point tt
consider, and that is the amount o
balance due plaintiff for the hay tina
was delivered.
Plaintiff introduced evidence fo
the purpose of establishing genera
custom in this community to bu!
aud sell hay by the tag weight, bu
the preponderance OF the evidenc,
was largely against such a custom.
If it proved any custom at all j
was custom to weigh few bales o
each lot, and if the weight correspond
ed with the tag weight to accept it
if 1t fell short to weigh the enti1
lot OF arrange the difference by de
Quoting an agreed amount from th
tag weight of each bale: The wit
nesses nearly all testified that ha,
will lose by drying and handling
from five to ten pounds to the bale
The testimony shows there wer
seventeen bales of the hay from plain
tiff's ranch, and that these bales fel
off 20 pounds per bale; allowing
pounds per bale for shrinkage would
leave shortage of Is pounds pc
bale, or 255 pounds on the II bales
which at SIS per ton would amour