Griffiths v. Henderson

         The complaint contains two counts, and the second count certainly states a cause of action. (Jones v. Black , 30 Cal. 228.)

         Appellant contends that by the agreement defendant was not bound to furnish, nor plaintiff to accept any cows. An inspection of the terms of thecontract will show the error of this. The contract first provides for a lease of land for five years. Second, " To furnish cows." Third, the compensation that defendant was to have for the use of said cows and the disposition of the increase. Fourth, for the construction of the improvements, etc. Fifth, the time when plaintiff shall take charge of the dairy and commence operations.

         It will be seen that there is no provision in the contract by which the plaintiff may elect to procure cows elsewhere, and no provision therein looking to a failure on the part of defendant, for any reason, to furnish the necessary cows. The contract is entire and as much binds the defendant to furnish cows as land, and, as a consequence, plaintiff to accept " cows fit for dairying," as much as it binds him to accept the land. The whole agreement fixing the various prices during the term, clearly shows upon its face and in the ordinary meaning of language the intent of both parties.

         The contract was mutual, binding one to furnish, the other to take; was put in writing and concluded, and was upon a sufficient consideration. (Canal Co. v. Hill, 15 Wallace, 94.)

         JUDGES: McKinstry, J. Mr. Justice Nilesdid not express an opinion.

         OPINION

          McKINSTRY, Judge

         The general demurrer was to the whole complaint. The second count contains an averment that the defendant " duly performed all the conditions of the contract on his part to be kept and performed." This is a compliance with the statute, and the objection that the pleading is insufficient is not well taken, unless the contract sued on is void.

         The District Court charged the jury, in effect, that by the terms of the written agreement the defendant promised to furnish " female cattle" sufficient in number to stock the land leased.

         We cannot say this was an error. The word " limited," in the clause " the number not limited," may be construed to be the equivalent of " fixed" or " specified." To construe the contract as authorizing the plaintiff to fix the number, would place in his hands the power of securing the use of the premises for the term of five years, for a rent merely nominal. Taking the instrument as a whole, it would seem to have been the intention of the parties to it that all of the lands were to be used as a dairy farm--the lessor furnishing kine, in proper number and quality, for carrying into effect the main design of the agreement.

         Judgment and order affirmed.