
    Whitson v. Culbertson.
    A contract for the delivery of “hogs/’ to be paid for at a certain price per hundred pounds “net,” was held, in the absence of any explanatory evidence, to mean dead hogs, without blood, hair or entrails, ready for cutting up.
    APPEAL from the Wayne Circuit Court.
    
      Saturday, December 8.
   Perkins, J.

Suit by Culbertson against Whitson for damages arising out of a breach of contract. Recovery by the plaintiff. The ease is as follows:

Whitson, by a written agreement, on which he received 5 dollars, dated April 16,1852, sold to Culbertson “twenty-five head of fat hogs,” to be delivered from the 1st to the 20th of December next following, for which Culbertson was to pay “4 dollars net per hundred pounds.”

Whitson, it is alleged, failed to deliver the hogs. Culbertson sued for damages, and recovered 70 dollars, being the rise in the price of the hogs at the time for delivery, from the contract price.

Whitson, at the proper time, tendered to Culbertson twenty-five head of slaughtered fat hogs in fulfillment of his contract, and Culbertson refused to receive them, claiming that the contract called for live hogs.

This was Whitson’s defence.

The Circuit Court, on a demurrer to it, decided with Culbertson. Counsel for Whitson assert that the decision of the Circuit Court was wrong. They say: “The contract was for hogs generally, and we contend that Whitson had the right to elect to deliver them dead or alive.”

definitions from Webster:

“Hog. A swine; a general name of that species of animal.

“Pork. The flesh of swine, fresh or salted, used for food.

“ Carcass. The body of an animal when dead.”

And they say, “ The appellant, in his brief, insists that ‘ a hog is a hog, dead or alive, and that it is hard to make anything else but a hog out of a hog.’ We think the reverse of this proposition would be nearer the truth, and that the appellant would be compelled to exert his capacity to its utmost tension before he would succeed in maldng a hog out of a hog; but he would find no difficulty in converting a hog into pork, lard, bacon, carcass or almost ‘ anything else’ but a hog.”

In common parlance, undoubtedly, the term “hog” is applied, not unfrequently, to the dead as well as to the living. This circumstance tends to produce some ambiguity in the contract under consideration. That ambiguity might have been removed by the averment in the pleadings, or proof upon the trial, had one taken place, of extrinsic facts which would have demonstrated the intention of the parties. For example, it might have been shown that Culbertson's business was that of a hog slaughterer, &c., and that the fact was known to Whitson; in which case the presumption would be that live hogs were intended in his purchase. Or it might have been shown that he had a packing, but no slaughtering house, and that he was engaged in packing slaughtered hogs; in which case the inference would be that he intended to purchase dead hogs. Other illustrations might be added, but it is unnecessary. The record, however, contains nothing of the kind. The fact that the hogs were to be paid for at so much net per hundred pounds, throws some light upon the subject. See Alexander et al. v. Dunn, 5 Ind. R. 122.

We understand that among hog dealers, two descriptions are recognized and well understood, to-wit, gross hogs and net hogs; that the gross hog is the live hog, and the net the dead hog, without blood, hair, or entrails, and ready for cutting up. Which kind was contemplated in the contract under consideration? As the net hog was to be paid for, the natural inference, unrebutted, would be that the net hog was to be delivered.

J. B. and G. W Julian, for the appellant.

O. P. Morton, J. S, Newman and J. P. Siddall, for the appellee.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  