Tilden v. Rosenthal

Mr. Justice Lawrence delivered the opinion of the Court: The plaintiffs entered into a written contract with the defendants, by which they contracted to deliver to them, by a certain day, “ two hundred and sixty-two head, more or less, of good fat cattle. * * * To average thirteen hundred pounds, and are the cattle known as the McCoy & Bishop lot, now being fed in the vicinity of Council Bluffs, Iowa.” The plaintiffs tendered one hundred and seventy-eight head by the day named, which the defendants refused to receive, whereupon the plaintiffs brought suit. The only question is, whether this was a sufficient performance, and we are of opinion that it was not. The counsel for the plaintiffs insist, that the phrase “ more or less,” used in the contract, relieved the vendors from the necessity of delivering the precise number, and required them to deliver only such portion of the cattle contracted for as might weigh thirteen hundred pounds. But the sale was for a specific lot of two hundred and sixty-two cattle, -which the vendors warranted should average thirteen hundred pounds, and we understand the phrase “ more or less,” as having been used by the parties to cover such trifling deficiencies in number as might be caused by the ordinary casualties of death or loss. But the deficiency was nearly one third of the. whole number contracted for. We are not-prepared to say, that, when a person contracts for a lot of cattle containing two hundred and sixty-two head, he shall accept one hundred and seventy-eight. Judgment affirmed.