Beauchamp v. Archer

Citations

• 58 Cal. 431
• 1881 Cal. LEXIS 248

Syllabus

<p>Contract or Sale—Sale.—The plaintiff contracted with the defendants for the purchase of a lot of cattle of certain brands, then running with a larger herd on the defendants’ ranch—paying to the defendants a portion of the purchase money—but neither party knew how many cattle there would be of the description agreed upon, nor was there any time fixed for the delivery of the cattle or the payment of the balance of the purchase money. The plaintiff notified the defendants that on a day specified he would receive the cattle, and, on that day, the cattle having been tendered to him by the defendants, offered in payment of the balance due a check—payable two days after sight—which the defendants refused to accept; and told the plaintiff that if he paid the money he could have the cattle, and otherwise not. Several days afterward, the plaintiff tendered to the defendants the balance of the purchase money, and subsequently, but on the same day, the defendants tendered to the plaintiff the money paid by him, each tender being refused. In an action for replevin of the cattle,</p> <p>Reid, That the contract was executory in its nature; that the payment of the price and the delivery of the cattle were concurrent conditions; that, the time of delivery having been fixed by the plaintiff, he should have been prepared to pay the balance of the purchase money, and his failure to do so gave the defendants the right to rescind; and that this right was not defeated by the tender made by plaintiff subsequently to his default.</p>