Aller v. Pennell

Adams, J. i. PUACTICJ5 in com™f'imeiuiea abstract. — I. The appellee insists that the case is not reviewable, for the reason that the abstract does not contain the evidence, even upon the points upon which error is assigned. The abstract purports to con^¡ajn ap evidence. If it does not, in fact, the appellee should have supplied the deficiency by an amended abstract. In the absence of such amended abstract we must. [539] assume that we have before us all the evidence that is necessary. II. The. jury found specially that neither party had complied with the contract, and, therefore, found generally for the defendant. 2. contract: failure to pertorm. The theory of the trial court was that, to enable the plaintiff to recover, he should show that he tendered the balance of the purchase money, or in some way offered to perform what was to be done upon his part. An instruction was given, a part of which is in these words: “Whichever party seeks to enforce a contract, he must prove performance, or tender of performance, on his part, and a failure to perform on the other’s part.” The giving of this instruction is assigned as error. In our opinion the instruction is not applicable to this case, and should not have been given. The sheep were purchased by the pound, and were to be weighed before the. balance due could be ascertained. The contract upon that point is in these words: “The said P. Aller agrees to pay five and one-lialf cents per pound for said sheep, to be weighed at Murray, Clarke county, Iowa; said sheep to be weighed to P. Aller on the 1st day of March, 1875.” The evidence shows that the plaintiff was at Murray at the time appointed for the weighing and delivery of the sheep for which he had contracted, and was ready to receive such sheep, if they had been weighed out and tendered to him; but this was not done. Certain sheep, it is true, were weighed out to him, but they were not, as we may assume from the special finding of the jury, of the number and quality called for by the contract. Until sheep of that number and quality were weighed out to him it is evident that he could not know the amount due from him, and that he could not perform on his part. Several other errors are assigned, but the view which we have taken of the case renders the consideration of them unnecessary. Reversed.