Mason v. Madson , 90 Mont. 489 ( 1931 )

I dissent. It seems to me that the words of the contract "all of 1929 lamb crop" together with the brand "M," when read in connection with the preliminary oral negotiations between the parties to explain the contract, would warrant a finding by the jury that what was meant was all of the 1929 lamb crop of the defendant. This being so, defendant fulfilled his contract by delivering his own full lamb crop regardless of the number, and plaintiff could not have been compelled to take the 52 head raised by another grower, even though of equal value and usefulness as those covered by his contract. (Stanfield v. Arnwine, 102 Or. 289, 202 P. 559;Russell v. Camp, 9 Ga. App. 691, 72 S.E. 60; Rosenberg Bros. Co. v. Beales, 56 Cal. App. 212, 205 P. 18; Mosby v.Smith, 194 Mo. App. 20, 186 S.W. 49; Houser v. Mathews,38 Ga. App. 404, 144 S.E. 43; King v. City of Rochester, 67 N.H. 310,39 A. 256; Shackelford v. Sloss Iron Steel Co.,140 Ala. 329, 36 So. 1005; Daggy v. Cox, 19 Ind. 142.)

The rule is succinctly stated by the author of the exhaustive note in 35 L.R.A. (n.s.), on page 290, as follows: "A seller of animals described as being in his possession, to be delivered after they have been fattened, must deliver the specific animals in question. The buyer cannot be required to accept other animals purchased by the seller for the purpose of filling the contract, even though they are of the same grade and quality." If then, by fair dealing, the buyer may not be compelled to accept animals of the same grade and quality, when not covered by his contract, he ought not to be compelled to do so by concealment or fraud on the part of the seller.

Since the jury would have been warranted in finding that there was no contract with reference to the 52 head of sheep, decisions holding that an executed contract may not be rescinded without alleging and proving damages have no application here. It is worthy of note, also, that evidence went in without objection that the 52 Maxwell lambs were not worth the money. Of course, as to the lambs covered by the contract plaintiff was obligated to pay for them whether or not they were worth the money, but not so as to lambs not covered by the contract. There is no attempt made here to enforce the rescission of the contract (according to plaintiff's version) in so far as the subject matter covered by it is concerned. The effort here is to rescind those acts done with reference to the 52 head of sheep not embraced in the contract. In other words, plaintiff is not seeking to enforce the rescission of a contract made by him, but is endeavoring to compel the defendant to restore to him that which he obtained from plaintiff under his warranty implied by law (sec. 7616, Rev. Codes 1921), that the 52 head of sheep were in truth covered by the contract when, in fact, they were not. He is seeking to be relieved from the supposed obligation to purchase that which he says he never agreed to purchase.

The effect of the majority opinion is to hold plaintiff to the obligations of a supposed contract, the terms of which the jury was warranted in finding he never assented to.

I think the court erred in taking the case from the jury.