William M. Tilden et al. v. Henry S. Rosenthal et al.
1. CONTRACT to deliver a specific number of caüle, “ more or less.” Where a party contracts to deliver a specific lot of cattle, containing two hundred and sixty-two head, “ more or less,” to average a certain specified weight, it is not a sufficient performance to tender to the purchaser one hundred and seventy-eight head averaging that weight.
*3863. The words “ more or less ” in such contract, are used to cover such trifling deficiencies in number, as might be caused by the ordinary casualties of death or loss; subject to this modification, it was a sale of a specific lot of two hundred and sixty-two cattle, which the vendor warranted should average a certain weight.
Whit of Ebbob to the Superior Court of Chicago.
This was an action of assumpsit commenced in the Recorder’s Court of the city of Chicago, by Tilden and McCoy, against Henry S. Rosenthal & Co., to recover damages resulting to the plaintiffs in the refusal of the defendants to accept or receive one hundred and seventy-eight head of cattle, alleged to have been sold and tendered by the plaintiffs to the defendants, and which the latter refused to accept.
The cause was removed into the Superior Court of Chicago, on a change of venue.
The contract between the parties in reference to the cattle, was as follows:
“Chicago, February 7, 1865.
“ For and in consideration of one hundred ($100) dollars paid in hand, and three thousand dollars to be paid by the firs't day of April next, we do covenant and agree, bargain and sell, to deliver unto Henry S. Rosenthal & Co., at the Fort Wayne Stock Yards, in the city of Chicago, Ill., two hundred and sixty-two (262) head, more or less, of good fat cattle, to be weighed from the cars direct, at the price of ten ($10) dollars per hundred pounds gross, and to be paid for on delivery in good bankable funds. Said cattle are to average thirteen hunliundred (1300) pounds, and are the cattle known as the McCoy and Bishop lot now being fed in the vicinity of Council Bluffs, Iowa, and to be delivered at the above place by the 25th day of June next.
“ TILDEN & McCOY,
H. S. ROSENTHAL & Co.”
The plaintiffs tendered one hundred and seventy-eight head by the day named, which the defendants refused to receive. Whereupon»the plaintiffs- brought this suit.
*387Tire question was, whether this was a sufficient performance, and arose on a demurrer in the declaration. The court sustained the demurrer, and rendered final judgment thereon against the plaintiffs. Thereupon they sued out this writ of error.
Messrs. Scates, Bates & Towslee for the plaintiffs in error.
Messrs. Wabd & Stanfobd for the defendants in error.
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.