J. C. SHARP, Appellant,
CHAS. OSBORNE, Appellee
APPEAL from a judgment of the Superior Court of the County of Navajo. J. E. Crosby, Judge. Reversed and remanded for further proceedings.
Mr. Sidney Sapp and Mr. Hess Seaman, for Appellant.
Mr. W. E. Ferguson, for Appellee.
[38 Ariz. 453] ROSS, J.
The plaintiff, J. C. Sharp, alleges in his complaint that on September 6, 1928, he bought of the defendant, Chas. Osborne, fifty head of two and three year old steers, ten head of bulls and stags, and forty head of cows, all Navajo Indian cattle, and paid therefor the lump sum of $2,000; that at the time he paid for the cattle he received a bill of sale from Osborne, but that Osborne had failed and refused to deliver the cattle to him; that by reason thereof Osborne is indebted to plaintiff in the sum of $2,000, together with legal interest from September 8, 1928.
Defendant answered and, in effect, admitted making the bill of sale of cattle, the payment to him of $2,000 as alleged, and also that he had not delivered the cattle described in the bill of sale to plaintiff. He justifies his failure to deliver the cattle on the ground that plaintiff had failed, according to his allegations, to keep and perform another contract between them dated June 18, 1928. To his answer he attached a copy of the June contract. We give its substance only. Under it Osborne agreed to sell to Sharp Navajo cattle bought by him during 1928, of the kinds and at the prices hereinafter set out, and to deliver them free of charge on board the Santa Fe Railroad at the stations of Holbrook or Pinta, to wit:
"Rough steers at one dollar per hundred less than other steers.
"Dry cows 3 to 9 years old, at $5.00 per cwt.
[38 Ariz. 454] "Bulls & Stags, at $5.00 per cwt.
"2 year old steers and over at $7.00 per hundred or at $1.50 per hundred less than American twos and threes bring here this fall."
Under this contract Sharp was to advance to Osborne $10 per head on 300 head, or $3,000, for which amount he was to be credited on the purchase price of said cattle in the final settlement, unless Sharp should refuse to accept and pay for the cattle when properly delivered, in which case the $10 per head advanced was to be forfeited to Osborne. These are the terms of the contract material to this case.
The breach of this contract by plaintiff is alleged as a defense in defendant's answer as follows:
"That on the 21st day of September, 1928, and before the close of the buying season for cattle on the Indian Reservations where said cattle were to be bought under the terms of said contract, plaintiff breached his said contract, and refused to further receive and pay for cattle bought and contracted for him by the defendant; and that at the time of refusal, the defendant had purchased from various people on the Navajo Indian Reservation cattle which under the terms of the contract would have yielded him a profit of $4,116.39 ($4,818.89 trial amendment), $2,116.39 more than the plaintiff had remaining of the $3,000.00-deposit with the defendant. That the plaintiff well knew that ...