Sugg v. George B. Hendricks Son

JENKINS, J. Plaintiff in error contracted to deliver to defendants in error certain cattle in Oklahoma at $33 per head. Defendants in error, at the time said contract was entered into, paid plaintiff in error $10,-000 cash, and subsequently, upon plaintiff in error’s representing that he had delivered 2,340 head, Geo. B. Hendricks paid him the remainder of the agreed purchase price for that number. Defendants in error, claiming that only 2,326 head were delivered, sued for value of the remaining 14 head at the time and place when they should have been delivered, which they alleged to be $40 per head. The case was tried before the court, who found in favor of defendants in error, and rendered judgment for 14 head at $33 per head. The court filed conclusions of law and fact, among which was the following: “Fourth. That on or about the 1st day of April, 1910, defendant delivered to plaintiff 2,304 head of steers, and in two or three days thereafter defendant delivered to and plaintiff received from him 22 head more of steers.” There is no disagreement as to the 22 head, but the plaintiff in error contends: That at the time of the first delivery he in fact delivered to Bruce Hendricks, one of the defendants in error, 2,333 head of cattle, and [395] that Hendricks left 29 head of them. That in the bunch of 22 head which he subsequently delivered to Hendricks were 7 head not included in the 2,333 head previously delivered, thus making in all 2,340 head. Plaintiff in error assigns error upon the finding of fact by the court that only 2,304 head of cattle were included in the first delivery. The issue of fact was as to whether the cattle cut out and not driven off by Bruce Hendricks at the first delivery were delivered to him at that time, or were they included, in the second delivery. The evidence sustains the finding of the court on this issue, for which reason the plaintiff in error’s assignments are overruled. The defendants in error, by cross-assignment, insist that the court erred in not rendering judgment in their favor for $40 per head for the 14 steers that they paid for but never received, instead of $33 per head, the' price that they paid. The proper measure of damages under the evidence in this case is the market value of the cattle at the time and place they should have been delivered under the contract. Calvit v. McFadden, 13 Tex. 324; Johnson v. Miller, 163 S. W. 592. The court having found that the defendants' in error paid for 14 head of cattle that were not delivered, and the undisputed evidence being that said cattle, at the time and place they should have been delivered, were worth $40 per head, we sustain said cross-assignment, and here render judgment for defendants in error for said amount, which, with interest from May 10, 1910, to the date of trial, is $066.20, together with interest on said amount at the rate of 6 per cent, per annum. As thus reformed, the judgment is affirmed. Reformed and affirmed.