B. N. Scribner & Co. v. Schenkel

*252 HENSHAW, J. The appeal is from the judgment. The contention of appellant is that under the findings the judgment should have been for fourteen hundred and thirty-five dollars and thirty-four cents, in addition to the sum of two hundred and seventeen dollars and fifteen cents, the amount for which judgment was given. The facts admitted or found hy the court are the following: One J. R. Crockett was in Glenn county, buying sheep and hogs. He entered into negotiations with plaintiff for the pur-, chase of some of the latter. ' On the eleventh day of October a letter was received hy the plaintiffs from the defendant, in which defendant “agreed with plaintiffs to pay for all the hogs which J. R. Crockett should buy.” Thereafter, on the sixteenth day of October, while the agreement of defendant was in full force and effect, and relying wholly upon the agreement, and giving credit solely upon the assurance of the agreement, plaintiffs sold to J. R. Crockett and J. R. Crockett bought of plaintiffs eight hundred head of hogs. The transaction was evidenced by the following writings, signed by the parties: “Bought 800 head of hogs of B. N. Scribner & Co. to be delivered as they are fit to ship at $4.75 will average about 200 not later than Dec. 10, 1894. “(Signed) B. N. SCRIBNER & Co.” “I bought of B. N. Scribner & Co. eight hundred head—800 —of hogs to be delivered as they are fit to ship, at $4.75 per ■hundred. They are all to be delivered not later than the 10th day of December, A. D. 1894. Average of 200 lbs. per hog. “(Signed) J. B. CROCKETT.” Thereafter, upon October 24th, seventy-six head of hogs, and on October 26th, eighty head of hogs, were delivered by plaintiffs to Crockett, and drafts drawn therefor on defendant in favor of plaintiffs were paid hy defendant. Hpon November 5th, fifty-five head of hogs were delivered to Crockett. A draft was presented to defendant which he declined to pay, assigning as a reason that he had no funds in his possession belonging to Crockett. Subsequently, five hundred dollars upon account of • this sum was paid by Crockett, leaving a balance of two hundred and seventeen dollars and fifteen cents unpaid. Hpon the dishonor of this draft by defendant, plaintiffs made inquiry, *253 and, in response, were informed that defendant would not pay for any more hogs bought by Crockett, and defendant has since that time refused to pay for any of the hogs, and has refused to receive any of them. Plaintiffs thereafter sold the remainder of the hogs upon the market at the market price, and at a loss from the contract price of fourteen hundred and thirty-five dollars and thirty-four cents. Before selling the hogs, and before commencing this action, plaintiffs demanded of defendant that he receive and pay for the hogs, but he declined so to do. The court rendered judgment in favor of plaintiffs for .two hundred and seventeen dollars and fifteen cents, the balance of the dishonored draft, but held defendant not to he liable for the fourteen hundred and thirty-five dollars and thirty-four cents, loss upon the sale of the remainder of the hogs. The agreement of defendant was to pay for all the hogs Crockett might buy. The plaintiffs having parted with value, having sold the hogs, and having given credit, as the court finds solely upon the security of this promise, it became an original obligation of the promisor—not a mere offer of guaranty, hut an absolute guaranty (Civ. Code, sec. 3794, subd. 3); and no notice of acceptance to the guarantor was necessary. (Civ. Code, sec. 3795.) Defendant by his absolute promise accepted and acted upon by plaintiffs became, as to plaintiffs, the principal debtor, and liable as such. (Hetfield v. Dow, 27 N. J. L. 440; Bates v. Starr, 6 Ala. 697; Patton v. Hassigner, 69 Pa. St. 311; Reif v. Paige, 55 Wis. 496; 42 Am. Rep. 731; Harson v. Pike, 16 Ind. 140; Duval v. Trask, 12 Mass. 156; Douglass v. Howland, 24 Wend. 35; Powers v. Bumcratz, 12 Ohio St. 273; Smith v. Dann, 6 Hill, 543.) The contracts between plaintiffs and Crockett constitute a sale absolute at a fixed price, with delivery at the demand of the purchaser. The delivery upon the one hand, and the payment of the purchase price upon the other, were concurrent obligations. When after payment for some of the hogs defendant informed plaintiffs that he declined to pay for the shipment already made and would pay for no more of the hogs sold, he put himself in default, and plaintiffs became entitled to enforce the obligation without further offer of delivery upon their part. (Civ. Code, sec. 1440.) Plaintiffs, in other words, were entitled to do precisely as they did do—sell *254 the remainder of the hogs at the market price, credit the defendant with the amount of the sale, and go into court to recover the difference between the amount of such sale and the contract price. It was not necessary for plaintiffs to tender the hogs to Crockett. The defendant was their principal debtor, and his refusal further to proceed with the contract amounted to a breach of it, and made a tender unnecessary. We think it clear under the findings, therefore, that the plaintiffs were entitled to a judgment in addition to that which they received of fourteen hundred and thirty-five dollars and thirty-four cents, the difference between the contract price of the undelivered hogs and the price at which they were actually sold upon the market. But against this respondent urges that a new trial should be awarded for the failure of the court to find upon an allegation of the complaint denied by the answer. The allegation was to the effect that the market value of hogs upon October 16, 1894, the date of the purchase by Crockett, was four dollars and seventy-five cents per hundred. The answer denying this alleges that three and three-eighths dollars pier hundred pounds was the reasonable value of the hogs at that time. We do not regard the issue thus joined as at all material to the determination of the case; and, consequently, the failure of the court to find upon it is likewise immaterial. Defendant’s promise was to pay for the hogs which Crockett might buy, and, of course, to pay for them at the purchase price. If deceit, fraud, or collusion, had been charged in the answer, to show that Crockett and plaintiffs had agreed upon a purchase price higher than the prevailing market rate to defraud defendant, the question would at once become of consequence. But no unfair dealing is charged or intimated, and Crockett himself was a professional buyer of hogs, traveling through the country for that purpose. Defendants, moreover, accepted and paid several of the drafts for the purchase price of the hogs at the contract price. The measure of damage, therefore; is the difference between the contract price of the hogs and the price at which they were disposed of in open market. It is ordered that the trial court modify its judgment by awarding plaintiffs the additional sum of fourteen hundred and thirty-five dollars and thirty-four cents. *255 McFarland, J., and Temple, J., concurred. Hearing in Bank denied.