
    Lowry v. Cooper.
    Contract. — Where a contract is made for the delivery of a certain number of a particular lot of hogs, it can not be discharged by the delivery of the like number of any other hogs, although of equal quality and weight, unless performance, in this respect, is waived by the parties.
    APPEAL from the Montgomery Common Pleas.
   Hanna, J.

Lowry contracted as follows: “This agreement witnesseth, that Oliver G. Cosby and Jasper Truett have sold to John Lowry fifty head of fat hogs, to be weighed on Jacob Shole’s scales, and to weigh 200 pounds and upwards each gross, and to be delivered to the said Lowry, at said scales, between the 25th of November and 25th of December, 1857, for which said Lowry agrees to pay, &c. September 9, 1857.” Signed by the parties.

Cooper avers, that, before the 25th of November, he purchased the interest of said Cosby and Truett in said contract, with consent of Lowry, who agreed to said substitution, and that he would perform, &c. It is further averred that the plaintiff performed said contract, and said defendant failed, in this, that he failed and refused to receive and pay for said hogs, &c. Answer, denial and failure upon the part of said Lowry, &c. Trial, finding and judgment for the plaintiff.

But one point is made, and that is, that the finding and judgment are not sustained by the evidence, in this, that it is shown, that a part of the hogs weighed by Cooper, and held ready for delivery, were not obtained by him from Cosby and Truett, nor owned by them at the time said contract was entered into. Alexander v. Dunn, 5 Ind. 122. In other words, that the contract contemplated that Cosby and Truett then owned and possessed 50 hogs that were to be delivered in discharge of its terms. Such appears to be the purport'of the case in 5 Ind., above cited. The writer of this opinion entertains serious doubts in regard to the correctness of the opinion pronounced in that case; but it is not necessary for the Court to review the question, there decided, in this case, because here, the evidence, we think, shows the construction which the parties themselves placed upon said writing. It is shown that the plaintiff went to the house of the defendant, and “asked him if he was willing that Cosby and Truett should assign their contract to him; defendant said he was perfectly willing to the transfer; that he did not care who filled the contract.”

It further appears that the defendant was at the house of Cooper, and fixed the day — a -week then hence — that the hogs were to be delivered, which was complied with by Cooper, as to time, number and weight. Dowry did not appear to receive them, nor did he offer objections in any form.

It appears to us, whatever legal construction might have been placed upon the language employed in the writing, aside from these surrounding circumstances, that, when viewed in the light of those circumstances, it is evident that it was not expected, by the parties to the transaction, that, by the terms thereof, only certain hogs were to be included therein.

The statement of Lowry, that he did not “care who filled the contract,” is scarcely reconcilable with the position now assumed, that he had contracted for the hogs of Cosby and Truett. If such was the contract, the delivery of the specific article only would have filled the contract, and could have been accomplished alone by Cosby and Truett themselves, or through another’. The contract could not, therefore, have been by them “transferred,” without also transferring the hogs. Evidently this was not in contemplation by the parties in their conversations.

McDonald, Roadie & Willson, for the appellant.

Lewis Wallace and M. D. White, for the appellee.

Per Curiam. — The judgment is affirmed, with costs, and 5 per cent. damages.  