I. The judgment below allowing defendants' counter claim of $ 4000, less the amount received on the sale of the negroes, is erroneous.
Thereis no evidence to show that Norris ever " chose" to take the cattle without counting them, nor that he ever gave notice of any such intention to the defendants, or their agent, or to anybody else; and, as it was only upon the consideration that Norris should so " choose," and should give notice of his intention, that he was to become liable to pay the $ 4000, no such liability has ever been incurred.
If a contract is in the alternative for the performance of one or the other of two different acts, the liability is discharged by the performance of one of those acts. The right of election is in the party who is to do the first act. If he fail to exercise it in proper time, it passes to the other party. (1 Bouvier's Law Dic. 460; Addison on Cont. 1125; 2 Parsons on Cont. 169-170; 3 Bacon's Abr. 307; Chippendale Ex'rs. v. Thurston, 4 Carr. & P. 98.)
It will perhaps be said for respondents, that under this contract Norris had an election to take the cattle, with or without a count; that he was bound to make his election when he went to Texas to take possession; that he failed to do so; that the right to make it thereupon passed to Harris and wife; and they elected that Norris shouldtake the cattle without counting them, and pay the $ 4000.
The contract gives no election in the proper and legal sense of the term. Norris was not bound to do one of two things. He was bound to do but one, and that was to take the cattle at their estimated number, and to pay for the excess, if, upon counting, there should prove to be any excess. The right was given him to avoid this liability and substitute another by his own act, but that was a condition for his advantage exclusively, and which could only become effective by his choice and declaration.
It was a mere privilege conferred on him, and only to be enjoyed by him upon notice, and for which he was to pay $ 4000.
In every case of election, the person entitled to it is bound to give notice which of the alternatives he selects, or to show which he selects by some act done in due season. In reference to both alternatives, he occupies the same position, and is as much bound to indicate his choice of one as of the other. If not so bound, it is not an election. Yet in this case Norris was under no obligation to give notice of any choice, except in the single event of his desiring to take the cattle without count.
Topay for the excess, if there should be any, was an absolute obligation; to pay the $ 4000 was a conditional one, dependent solely upon his choice and act. The event did not take place, and the latter obligation never became absolute.
II. Defendants not having all the property which they agreed to sell and deliver to Norris, the latter was under no obligation to accept the part, but was at liberty to rescind the contract.
This was an entire contract for the whole of the personal property, and not a separate contract for each item. It was entire for all the items, and for the full amount of each. (Story on Cont., secs. 22-24, and cases cited; 2 Kent's Com. 470; Atkinson v. Smith, 14 Mees. & W. 695; Sleddon v. Cruikshank, 16 Id. 71; Scott v. The Eastern Counties R. Co. 12 Id. 33; Franklyn v. Lamend, 4 Mann. G. & S. 647; Paige v. Ott, 5 Denio, 406; Miner v. Bradley, 22 Pick. 459; Barclay v. Tracy, 5 Watts & S. 45; Mills v. Hunt, 17 Wend. R. 333; S. C., 20 Id. 431.)
It is admitted that the defendants' agent had sold some of the negroes, and the defendants no longer had them to deliver when Norris arrived in Texas.
It may be said, in respect to the deficiency in the numberof horses and cattle, that there was no positive stipulation that they should amount to the number designated, and that the case of a deficiency was expressly provided for, and that the terms upon which it was to be made good were agreed upon. But the contract contemplated only a reasonable excess or deficiency--such as might be covered by the words more or less; and these words will only cover a moderate excess or deficiency. (Addison on Cont. 173 and cases cited; Cross v. Eglin, 2 B. & Ald. 106. See also Story on Sales, sec. 424; Id. on Cont., sec. 481.)
III. Plaintiff had a right to rescind the contract, because defendants' bill of sale did not vest in him a good title to the whole property. (2 Kent's Com. 470; Story on Sales, 203, 423, and cases cited.)
The validity of a contract is to be determined by the law of the place where it is made, unless it is to be performed in another country, and then it must be determined by the law of the place of performance. (2 Kent's Com., 453-462, and cases cited.) It is unnecessary to inquire whether this contract was in any sense to be performed in the State of Texas, and therefore to be construed by that law; for it is well settledthat " foreign laws are regarded as facts, and should be alleged and proved like other facts of which the Courts do not take judicial notice; " and that " in the absence of such allegations and proofs, our Courts will presume that the foreign laws are in accordance with our own." (Monroe v. Douglass, 1 Seld. 447.) In this case, there is no allegation nor proof of what the law of Texas is, nor that it is in any respect different from our own; and in the interpretation of this contract, we are therefore referred to no other law than the law of California.
By the will, under the law of California, Mrs. Harris took an equal undivided interest in the property with her children; that is, she took a child's part, and no more. Any instrument by which she might convey all her interest in the estate, would convey nothing but that part. Such would be the legal effect of any conveyance by her of the whole estate.
It is true, the will gives to her the sole and entire control during her life of all the testator's estate, real and personal, for the benefit of herself and her children, free from the control of any Court. But by control is meant only management. It is clear that thisclause gave no power of disposition. To control and to alienate, are words of wholly dissimilar signification.
That no power of sale or alienation was intended to be given by this clause, is further manifest from the subsequent provision in which such a power is given, and certain limitations imposed upon its exercise. What power of alienation she was to have is declared in the third article of the will, which gives her " full and complete powers in her own name and as guardian of her children, to sell and convey, or exchange, any portion or all of the estate, and to give title to the same, etc., without the intervention or interposition of any Court whatever."
This power was to be exercised in a twofold capacity. Under it, and in her own name and right, she could convey but her own interest under the will. It was only as guardian that she could, by any alienation, affect the interests of her children; as executrix, she has no power whatever to sell the estate, or any part of it, for any purpose.
Her rights, then, in regard to the property were these: She was the absolute owner of an equal undivided interest with her children; she was nominated their guardian, and, assuch, the will directed that she might sell or exchange their share of the property, whenever, in her own name, she sold or exchanged her own; and she was named, in effect, sole executrix, without any power, as such, to sell or dispose of any part of the estate.
The complaint avers that Mrs. Harris never obtained letters testamentary, nor of guardianship, either in Texas or California, and never qualified in either State, either as executrix or guardian, and this fact is nowhere denied by the answer.
What authority, then, had Mrs. Harris to convey the interests of her minor children in this property? The interest an executor takes in the personal property of the testator, or the power of disposition he has over it, depends on the law of the country in which the testator lived at the time of his death.
Under our law, it is questionable whether there is any difference between an executor and an administrator, even in regard to the time at which the interest in the estate of the deceased vests; in other words, whether the title of the executor is not as much derived from the probate of the will and the grant of letters, as that of the administrator from his appointment. But whether this be so or not, it is very certain that the power of disposition of each over the property in his custody is precisely the same, except in those cases where our statutes permit an executor to make sales under the directions of the will, without the previous order of the Court.
Before the grant of letters testamentary, the executor can do no act incident to his office, for until his appointment he is not in office. If there is any delay in granting letters testamentary, or where there shall have been no application for letters, the Probate Court may appoint a special administrator to take charge of and collect the estate. (Act to regulate the settlement of the estates of deceased persons, sec. 88.) There could not be a stronger negative to the proposition, that the executor can act as such before obtaining letters testamentary, than this, which, in consequence of his failing or neglecting to apply for letters, puts the estate in charge of another agent.
The general provision in regard to sales is, that " No sale of any property of an estate shall be valid, unless made under order of the Probate Court." (Same Act, sec. 148.) Even perishable property cannot besold without such an order, and the mode in which an order for the sale of any personal property shall be applied for, and the circumstances under which it may be granted, are determined by the statute, which declares also how it shall be made. (Secs. 149-153) This is equally applicable to executors and administrators, and it presupposes the grant of letters. An executor is, therefore, not only without power to make a valid sale before he has qualified as such, but even afterward, unless the sale is authorized by the Court.
The only exception to this is to be found in section one hundred and seventy-eight, which provides that, when any " property is directed by the will to be sold, the executor or administrator, with the will annexed, may proceed to sell, without the order of the Probate Court, but he shall be bound, as an administrator, to give notice of the sale, and to return accounts thereof to the Court, and to proceed in making the sale, in all respects as if it were made under the order of the Court, unless there are special directions given in the will, in which case he shall be governed by such directions."
In the will of Charles L. Dell there are no directions forthe sale of any property by his executrix; and if the power given to her, for herself and as guardian of her children, to sell or exchange this property, could even be construed to be a direction in the meaning of the statute, no valid sale or exchange was made, because she had never taken out letters testamentary, and consequently never had any authority to sell as executrix.
She had just as little authority to sell as guardian, and for the same reason. She never qualified as such. (Act to provide for the appointment and prescribe the duties of guardians, sec. 10.) And further, our statute does not recognize any power given by will to the guardian to sell the property of the ward without the order of the Probate Court, nor permit its exercise.
For these reasons, Mrs. Harris having no right or authority to sell and convey the interests of her children in this property, the bill of sale could only give to Norris a title to the undivided interest of Mrs. Harris, and that there was such a failure of title as justified the rescission of the contract by Norris.
In reply to appellants' brief, counsel cited: Doggett v. Emerson et als., 3 Story C. C. 700; Daniel v. Mitchell, 1 Id. 172; Mason v. Crosby, 1 Woodb. & M. 342; Tuthill v. Babcock, 2 Id. 298; Smith v. Babcock, Id. 246, as to the right to rescind the contract for an unreasonable deficiency in the number of cattle.
JUDGES: Field, C. J., delivered the opinion of the Court. Cope, J., concurring. Baldwin, J., having been counsel for the respondent in the Court below, did not sit in the case.
OPINION
FIELD, Judge
In the year 1853, one Charles L Dell, at that time a resident of Texas, died possessed of real and personal property situated in that State, and leaving a widow, Amanda, one of the present defendants, and two children, surviving him. By his last will, which was made in Texas, he gave all his estate, real and personal, to his wife and children, in equal interest one with the other, and invested his wife with the " sole and entire control" of the whole estate during her life, for the benefit of herself and children, free from the control and guidance of the Courts of law in that or any other State where she might reside at the time of his death, and with authority in her own name, and as guardian of the children, to sell or exchange the estate, or any part thereof, and to purchase with the proceeds such other property as she might deem best for her own interest and that of the children, without the interposition of any Court whatever, and appointed her executrix of his will and guardian of his children. The will was duly admitted to probate, and recorded in Harris county; but whether any letters testamentary or of guardianship were ever issued to the widow, does not appear. The complaint alleges that none such were ever issued, and that she never qualified, either as executrix or guardian, and was never authorized by the judgment or order of any Court in Texas to act in either capacity. The answer does not specifically meet these allegations, so far as the issuance of letters is concerned; but avers that all due and necessary proceedings were taken under the Constitution and laws of Texas to authorize her to act both as executrix and guardian, and to make valid sales of the property in that State or elsewhere.
In 1854, the widow of Dell intermarried with the defendant, Lewis B. Harris, and moved, with her husband, to Sacramento city, in this State, where she has ever since resided. In 1856, the plaintiff, Samuel Norris, entered into a contract with the defendants for an exchange of property, by which contract Norris conveyed to Mrs. Harris certain real estate situated in the county of Sacramento, and certain interests in the bridge over the American River--the whole property being of the estimated value of $ 61,889, and paid to her in cash the sum of $ 9120--and in consideration thereof, the defendants sold to him a number of slaves, identified and described by name and age; two hundred and fifty head of horses; seven thousand head of cattle, and other property, all being at the time in the State of Texas, and constituting part of the property which belonged to the estate of Dell, deceased.
Both instruments were executed simultaneously, and both recite a pecuniary consideration--that of Norris, a consideration of $ 70,000; that of Harris and wife, a consideration of $ 6000 for the negroes, $ 9000 for the horses, $ 56,000 for the cattle and other property--in all, $ 71,000. But the real consideration was, on the one side, the property conveyed and money paid by Norris; and on the other, the negroes, cattle, and horses, and other property in Texas, transferred by the defendants. With his conveyance, Norris delivered to the defendants possession of the property in Sacramento, and they have ever since continued in possession of the same, with the exception of a small portion, which they have sold.
The bill of sale to Norris recites that the cattle were at the time running in the counties of Harris, Brazoria, Fort Bend, and Galveston; and provides that upon the arrival of Norris, or his agent, in Texas, for the purpose of taking possession of the property, he might have the election of taking all the cattle belonging to the estate of Dell, without making a count; in which event, he was to notify the agents of the defendants in possession of the same of his intention to thus take them, and to pay an additional sum of $ 4000; but that if he made a count of the cattle, and they exceeded seven thousand in number, he was to pay eight dollars per head for the excess; and if they fell short of that number, the defendants were to repay to him the same price per head for the deficiency. The bill of sale also provides that if the horses, on being counted, exceeded or fell short of the specified number--two hundred and fifty--the excess or deficiency should be paid for at the rate of thirty-six dollars per head. With the bill of sale, the defendants gave an order upon their agent in Texas to deliver possession of the property to Norris.
At the date of these respective instruments, three of the slaves had been sold, and it would appear that there was a deficiency in the designated number of horses and cattle. The evidence in relation to the deficiency is not very precise or satisfactory. No count had been made by any of the witnesses, and their statements are only conjectural and speculative in their character, and materially differ from each other. The evidence leads to the conclusion that there was a deficiency, but leaves its extent a matter of uncertainty.
Soon after the execution of the bill of sale, Norris proceeded to Texas to take possession of the property, and whilst there, became impressed, as it would seem, with the conviction that the instrument did not pass a good title to him, and that the property was different, both in quantity and character, from the representations made by the defendants. He accordingly returned to California without taking possession, and soon after notified the defendants that he rescinded the contract, and tendered to them a retransfer of the property, and demanded a restitution of the property which he had conveyed to Mrs. Harris. As the defendants insisted upon the validity of the contract, he instituted the present suit to obtain such rescission and restitution, and an account of the rents and profits of the property, conveyed by him, while in the hands of the defendants.
In the complaint, various charges are made of fraudulent representations by the defendants as to the quantity, quality, and value of the property sold by them, none of which are supported by the evidence, and they are abandoned by the plaintiff's counsel. The evidence, produced by the plaintiff himself, frees the defendants from the imputation cast upon their conduct, and fully vindicates the good faith of their acts.
The other grounds upon which the plaintiff rests his right to relief, are the alleged want of power in the defendants to convey the property, and the alleged deficiency in the number of slaves, horses, and cattle designated in the instrument of sale. Their determination will dispose of the merits of the plaintiff's claim to a rescission of the contract. The validity of the counter claim asserted by the defendants, and the judgment rendered in their favor, will be subsequently considered.
The solution of the proposition involved in the first position of the plaintiff must depend upon the construction given to the will of the testator, the necessity of letters of guardianship to invest Mrs. Harris with authority to act under the will, and the necessity of the direction of the Probate Court to give validity to the sale made.
The defendant, Mrs. Harris, styles herself in the bill of sale as executrix, and designates the property as belonging to the estate of the deceased, but attaches her signature without any addition of the capacity in which she acts. The will must be interpreted according to the law of Texas, where it was made, and where the property upon which it operated was situated. To that law we must resort to determine the capacity of the testator, the extent of his power of disposition, and the conditions upon which the power of alienation vested in the guardian was to be exercised. (Jarman on Wills, 1; 2 Greenl. on Ev., sec. 671.) In the present case, there is no proof what the law of Texas is upon these subjects. One of the counsel of the defendants insists that, in the absence of such proof, the rule is to presume the existence of the common law, and to be governed by its principles. There is no doubt that the common law is the basis of the laws of those States which were originally colonies of England, or carved out of such colonies. It was imported by the Colonists, and established so far as it was applicable to their institutions and circumstances, and was claimed by the Congress of the United Colonies in 1774 as a branch of those " indubitable rights and liberties to which the respective colonies" were entitled. (1 Kent's Com., 343.) In all the States thus having a common origin, formed from colonies which constituted a part of the same empire, and which recognized the common law as the source of their jurisprudence, it must be presumed that such common law exists--it has been so held in repeated instances--and it rests upon parties who assert a different rule to show that matter by proof. (See Inge v. Murphy, 10 Ala. 895 .)
A similar presumption must prevail as to the existence of the common law in those States which have been established in territory acquired since the Revolution, where such territory was not at the time of its acquisition occupied by an organized and civilized community; where, in fact, the population of the new State upon the establishment of government was formed by emigration from the original States. As in British Colonies, established in uncultivated regions by emigration from the parent country, the subjects are considered as carrying with them the common law, so far as it is applicable to their new situation, so when American citizens emigrate into territory which is unoccupied by civilized man, and commence the formation of a new government, they are equally considered as carrying with them so much of the same common law, in its modified and improved condition under the influence of modern civilization and republican principles, as is suited to their new condition and wants. But no such presumption can apply to States in which a government already existed at the time of their accession to the country, as Florida, Louisiana, and Texas. They had already laws of their own, which remained in force until by the proper authority they were abrogated and new laws were promulgated. With them there is no more presumption of the existence of the common law than of any other law. They were independent of the English law in their origin, and hence no presumption of the existence of the common law of England can be indulged. In countries conquered and ceded to England, the common law has no authority without positive enactment, and for the same reason, that they were not part of the mother country, but distinct dominions. (1 Blackstone, 107; Story on the Cons., 1 vol. 150.)
As Texas was an independent country at the time of its accession to the United States--having laws of its own, not being carved out of the ancient colonial provinces of England, like the original thirteen States, or formed by emigration into an uncultivated country from those States, but from a Mexican province by a successful revolution against the Republic of Mexico--no presumption can arise of the existence therein of the common law, which is the basis of the jurisprudence of the other States.
The question then recurs as to what is to be presumed as to the law of Texas, in the absence of any proof on the subject. We can perceive only one way in which the question can be answered, and that is to presume the law of that State to be in accordance with our own. We are called upon to determine the matter in controversy, and are not at liberty to follow our own arbitrary notions of justice. We cannot take judicial notice of the laws of Texas, and we must, therefore, as a matter of necessity, look to our own laws as furnishing the only rule of decision upon which we can act; and to meet the requirement that the case is to be disposed of according to the laws of Texas, the presumption is indulged that the laws of the two States are in accordance with each other. The authorities, with some exceptions, are to this effect. Thus, in Smoot et al. v. Baldwin, 1 Mart. N. S. 523, a question arose in the Supreme Court of Louisiana whether an instrument executed in Alabama was a mortgage or a sale, and the Court said: " The law of Alabama has not been proved, and, conformably to the uniform decisions of this Court, we must decide this case by the provisions of our own." In Allen v. Watson, 2 Hill's S.C. 319, the plaintiffs brought suit in South Carolina to recover a sum of money won by the defendants at a faro table in Georgia. It was insisted that before the plaintiffs could recover, they must show playing at faro to be illegal by the law of Georgia; but the Court said: " It is true, the legality or illegality of any transaction must depend on the law of the place where it transpires, but it is incumbent on those who would avail themselves of it to show what that law is. In this State, (South Carolina,) playing at faro is unlawful and punished by fine; and if we are obliged to determine that question, in utter ignorance of what the law of Georgia is, we must resolve it by our own rule, for the obvious reason that we have no other."
In Monroe v. Douglass, 1 Selden, 452, the Court of Appeals of New York, in referring to the laws of Scotland, which were supposed to apply to the controversy involved, but which were neither asserted or proved to be different from those of that State, used this language: " It is a well settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose Courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, as, for instance, the lex domicilii, lex loci contractus, or lex loci rei sitoe, he must aver and prove it. The Courts of a country are presumed to be acquainted only with their own laws; those of other countries are to be averred and proved, like other facts of which Courts do not take judicial notice, and the mode of proving them, whether they be written or unwritten, has been long established." (See, also, as bearing more or less directly on this and kindred questions, Arayo v. Currel, 1 Mill. La. 541; Crozier v. Hodge, 3 Id. 357; Ex parte Lafonta, 2 Rob. 495; Smoot v. Russel, 1 Mart. N. S. 522; Campbell v. Miller, 3 Id. 149; Harris v. Allnutt, 12 La. 465; Greenwade v. Greenwade, 3 Dana, 75; Holmes v. Broughton, 10 Wend. 75; Abell v. Douglass, 4 Denio, 305; Thurston v. Percival, 1 Pick. 415; Crouch v. Hall, 15 Ill. 265; Titus v. Scantling, 4 Blackf. 90; Sheperd v. Nabors, 6 Ala. N. S. 637; Ellis v. White, 25 Id. 540.)
Assuming then, for the reasons we have stated, that the laws of Texas are similar to the laws of this State on the same subjects, we proceed to consider the questions raised by the plaintiff as to the power of Mrs. Harris under the will. It is clear to us that it was the intention of the testator to invest his wife, not merely with the entire control of the estate during her life, but with the absolute power of disposition, subject to two qualifications--one, that the cattle should not be sold in two years unless eight dollars per head could be obtained for them; and the other, that certain real estate should not be sold until the lapse of twenty years. Subject to these limitations, all power and authority are given to her to control, exchange, or sell the property, without the guidance or interposition of the Courts of law. Particular desire is manifested by the testator that her power should not be the subject of interference or embarrassment by legal proceedings. Her control of the estate is to be without the guidance of the Courts, and the sale or exchange of the estate is to be without their interposition. Language more expressive of his confidence in the ability of his wife to manage the estate, and of his desire to invest her with power of disposition, independent of all direction or dictation by any tribunal, could hardly be used. To require her to obtain that direction, or to be subject to that interference, would defeat the express provisions of the will. Mrs. Harris is legatee, executrix, and guardian. In one or the other, or all these capacities, she had by the terms of the will the power to execute the bill of sale to Norris. The bill purports to transfer the property, and not any particular interest she may have possessed in her own right or as executrix or guardian. It is true, she describes herself in the instrument as executrix, but this is only a designation of her person, intended to identify her as the individual mentioned in the will. The designation does not operate as a limitation upon her power. If she possessed the power to dispose of the entire estate, she exercises that power when she executed the bill of sale. The transfer was valid, though the description was defective. The authority was vested in herself alone under the will, and could only be exercised by her in whatever way she was designated, or if no designation was affixed to her name. It is not the case of an agent or attorney exercising another's authority, and therefore proceeding only in his name. It was the exercise of her own authority, possessed in her own right.
The position taken by the plaintiff, that it was incompetent for the testator to provide for the sale by Mrs. Harris of the property of her children, without the direction of the Probate Court, is not tenable. The statute of this State in relation to guardians, and which we must presume to be in accordance with the laws of Texas, is only applicable, in our judgment, to cases where there is no direction by will as to the disposition of the estate left to the wards. If such estate were given, subject to a right of sale or exchange in the guardian, and thereby to acquire property, for their benefit, of a different character, it is difficult to perceive in what respect the policy or letter of the law would be contravened. The object of the law, when there has been a testamentary appointment of guardian, is, as we conceive, to preserve the property for the benefit of the wards, so as to effectuate and not defeat the intentions of the testator. This view is strengthened by the consideration that there is no limitation by the law of this State upon the power of disposition by will. The statute is only operative where there is no testamentary power.
Nor is it necessary, under our statute, that any letters of guardianship should issue to authorize the guardian to act. The order of appointment, when made by the Probate Court, constitutes the authority of the guardian, and the will, in case of testamentary appointment, that of guardians in other cases. The will in the present case was admitted to probate; and, therefore, to its provisions Mrs. Harris must look as her source of power.
It follows, from the result to which we have arrived, that the bill of sale passed a good and sufficient title in the property to Norris; and this brings us to the consideration of the second ground upon which a rescission of the contract is sought by him--the alleged deficiency in the number of slaves, horses, and cattle sold.
As we have already stated, three of the slaves designated in the instrument of transfer to Norris had been at the time sold, and it appears from the evidence that a deficiency existed in the number of horses and cattle, and hence, it is contended that the plaintiff was under no obligation to accept those which remained, on the ground that the contract was entire for the whole of the personal property. It is undoubtedly true that an entire contract is indivisible--that the whole must stand or fall together. But a contract, made at the same time, of different articles, at different prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, or unless it is of such a nature that a failure to obtain a part of the articles would materially affect the objects of the contract, and thus have influenced the sale, had such failure been anticipated. In the present case, the contract includes three items--the slaves, the horses, and the cattle. As to the slaves, the contract is clearly entire. A gross sum is fixed for the whole number, and no means for determining the price for each one is afforded, and hence the agreement is implied that the whole are to be taken or none. (Story on Cont., sec. 23; Miner v. Bradley, 22 Pick. 459.) As to the horses and cattle, a possible deficiency in their number was in the contemplation of the parties at the time, and hence provision for compensation per head was provided to meet such deficiency. The failure, then, to deliver the whole number of horses and cattle did not invalidate the contract as to them, but the sale of the three slaves, and the consequent inability to deliver the whole number, would have that operation as to the item of slaves, were it not for the subsequent and independent stipulation of the parties, by which provision was made for the sales which might take place before the news of the transfer to Norris could be received by the agent of the defendants. That stipulation obviates the objection on that ground. ( Mayfield v. Wadsley, 3 Barn. & C. 361; S.C. 5 Dowl. & R. 228; Wood v. Benson, 2 Cromp. & J. 94.)
The views to which we have arrived as to the power of disposition of the defendant Mrs. Harris, under the will, and the alleged deficiency in the property designated in the instrument of sale, dispose of the claim of the plaintiff to a rescission of the contract.
It only remains to consider the validity of the counter claim upon which the defendants recovered judgment. The determination of this point depends upon the construction of that clause in the bill of sale which provides that if Norris, on his arrival in Texas, should choose to take all the cattle without a count, he should notify the agent of the defendants in possession of his intention to do so, and in consideration thereof, pay the further sum of $ 4000; but if a count was had, and the cattle exceeded or fell short of the estimated number of 7000, the excess or deficiency should be paid for at the rate of eight dollars per head. No count was ever made, and no notification was ever given by Norris that he chose to take the cattle without a count; but on the trial, which was brought on in the absence of plaintiff's counsel, judgment was taken for $ 4000, as though there had been such notification, after deducting from that sum the amount received upon the sale of the three negroes. In this respect, the judgment is clearly erroneous. The sale is of all the horses and cattle belonging to the estate of Dell, estimated at a specified number, and the delivery to the purchaser was, of course, to be made by the defendants or their agents. The plaintiff was bound to receive them, and to pay for the excess over the estimated number, if, upon a count, any should be found to exist. This was the sole obligation resting upon him in the first instance, and the only one he agreed to assume, except upon condition that he should elect to take the cattle without any count. This condition was a mere privilege, which he could claim or not, at his own mere volition, and for which, if claimed, he was to pay the sum of $ 4000. He could thus have avoided one liability by assuming another; but as he did not think proper to change the extent or nature of his obligation, he cannot be charged as if the reverse were the case. The defendants could have made the count, and thus have fixed the liability of the plaintiff on his refusing or neglecting to take the cattle without such count. The defendants were not bound to wait beyond a reasonable time for his determination.
The doctrine of election, upon which the defendants attempt to sustain the counter claim, has no application to the contract in this case. That doctrine applies only to cases where the party, upon whom rests the performance, stands in the same position to both alternatives presented, and is bound to indicate his choice between them. Here there was no obligation resting upon Norris to choose between two things: he was not bound to indicate any choice, only in the event of desiring to take the cattle without a count. If he did not desire to do so, he was not required to give notice to that effect. The obligation to pay for the excess over the estimated number, if there were any, was absolute, without any expression of choice; but the obligation to pay the $ 4000 was a conditional one, dependent solely upon the indication of his desire to dispense with the count.
In cases where the doctrine is applicable, the right of election, upon failure of the party upon whom the performance rests to indicate his choice, passes to the other side, as in this way only can the obligation become absolute and determinate. Thus, if a debtor, by a given day, is to pay money or furnish goods, it is evident that upon a failure to indicate which of the two he will do, the obligation would be indefinite and uncertain. But this is quite different from a contract to do a certain thing absolutely by a given day, with the privilege of discharging the obligation in some other way previously. In such case, if the privilege be not exercised, the obligation is not left in uncertainty, but is definite and absolute. So, in the present case, the failure or refusal of Norris to indicate any desire to take the cattle without a count, did not leave the character of his obligation in any respect indefinite and uncertain.
It follows, from the views we have expressed, that the judgment must be reversed and the bill dismissed, and the parties left to determine, by actions at law, their respective claims for any excess or deficiency in the number of horses and cattle designated in the instrument of sale. And it is so ordered.
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