This suit was brought by appellee to recover of appellant the price of five thousand three hundred and eighty-four head of cattle delivered by appellee to appellant, under a contract in writing, in substance as follows: Appellee agreed to sell and deliver to appellant “eight thousand head of mixed yearlings (steers and heifers), all to be good, merchantable cattle,” in three herds, the first herd to be delivered May 15, 1885, and the other two as soon thereafter as practicable; in consideration of which appellant agreed to pay appellee eight dollars per head for the cattle so delivered, and for the purchase money so promised, to execute to appellee his promissory note payable on or before a date twelve months after the delivery of the first herd, the notes to bear twelve per cent per annum interest from date, and to be secured by a *385mortgage upon certain lands and cattle belonging to- appellant, and also upon the cattle so sold.
Appellee alleged in his petition the delivery and acceptance of five thousand three hundred and eighty-four cattle, under the contract, and a tender of two thousand six hundred and sixteen yearlings, such as were called for in the contract, and appellant’s refusal to accept the latter. He also alleged appelpellant’s failure to pay for the cattle received by him, and his refusal to execute the note and mortgage stipulated for in the agreement. He prayed a judgment for the purchase money of the cattle delivered at the contract price, with interest at twelve per cent per annum from the time of the delivery, and for a decree enforcing the lien upon the property described in the agreement.
By the first assignment of error it is complained that the court erred in overruling defendant’s exception to so much of the petition as sought to recover the conventional interest of twelve per cent. The fourteenth assignment is to the effect that the court erred in charging the jury to allow interest at the stipulated rate. These are based upon the proposition that because the contract was not fully consummated, and the notes were not given, interest at the rate agreed upon could not be recovered; but the proposition is not sound. The plaintiff alleged an offer fully to comply with the contract on his part, and the defendant’s refusal, and clearly the measure of his damages as to the cattle delivered and accepted was the contract price and interest at the rate and from the date set forth in the agreement. (Heidenheimer v. Ellis, 67 Texas, 426; I. C. Savings Bank v. Sachtleben, Id., 420.)
It is also complained that the court erred in not striking out, upon defendant’s exception, so much of the petition as sought to enforce a lien upon the property therein described. This assignment is not well taken. The plaintiff averred a substantial compliance with the contract upon his part. This entitled him to have it enforced according to its terms to the extent that defendant had actually received cattle under it. A written agreement to give a mortgage, with which the party entitled thereto has complied, is treated in equity as a mortgage, and will be enforced as such between the parties to the original transaction. (Texas Western R’y Co. v. Gentry, decided at this term.)
*386. Defendant pleaded in his answer that after the execution of the contract plaintiff agreed that he could sell or ship a portion of the cattle upon which the mortgage was to be executed, and also that plaintiff, after the delivery of the second herd, never delivered or tendered the additional cattle required for the completion of the contract on his part, and claimed that thereby the lien was waived and discharged. Exceptions to these allegations were sustained by the court, and the ruling is assigned as error. It is undoubtedly true that if a party who has a lien upon property consents to an absolute sale of the property, and it is accordingly sold, the lien is thereby waived as to so much as is sold, but it does not follow that if he consents to a sale of a part of it merely, that he relinquishes his lien upon the part to the sale of which he did not consent, or upon so much of it as is not actually sold. The defendant does not allege any consideration for plaintiff’s agreement that he might sell or ship the cattle, and we think it clear that the agreement was not binding, and that plaintiff did not thereby waive his right to a mortgage as to any of the property which was not actually disposed of by his permission. As to so much of the answer as claims a discharge of the lien by reason of plaintiff’s failure to deliver the full number of cattle, this is to be said: that if he did make such failure it was defendant’s right to tender back the cattle and claim a rescission of the contract: he can not hold the cattle already delivered under the agreement without paying according to its terms. To hold that he can retain what he has already received, and be held to account merely for the value as a simple debt discharged of any lien, would be to hold the plaintiff to a contract to which he never agreed. If he has suffered damage by plaintiff’s failure, his damages would be a proper subject of counter claim, and could be set off against plaintiff’s demand.
In regard to the third assignment of error, it is sufficient to say that it does not appear, from the allegations of the answer, which are there brought in question, that the losses there claimed by defendant were in the contemplation of the parties at the time the contract was entered into. (Pacific Express Co. v. Darnell, 62 Texas, 639.) The inference from the averments is that the contract to deliver a part of the cattle to Shiner & Williams was made after the execution of the contract with plaintiff; so that, in our opinion, the latter would not be liable for any damage incurred by defendant by reason of his failure *387to make a timely delivery to them, although such failure was caused by plaintiff’s dereliction in failing to make delivery according to the terms of his agreement with defendant.
It was urged by defendant below, and is insisted here, that the second herd of cattle delivered by plaintiff were not in accordance with the terms of the contract, and that he should not be compelled to pay for the same according to the contract price. He admits, however, that he received the cattle, though under protest; claiming that he was forced by the exigencies of his business to take the cattle for delivery upon contract with third parties which he then had outstanding. But if the cattle tendered him were not such as were called for in his agreement with plaintiff, and he knew this, he should have rejected them.
When a purchaser under an executory contract for the sale and delivery of personal property inspects the same before delivery, he is estopped to set up that it is not such as the seller has agreed to deliver, so far as all visible defects are concerned. His mere protest, in the face of his acceptance, amounts to nothing. If the property is not such as his contract calls for, he can refuse to receive it, and sue for such damages as he has suffered by the breach of the agreement. He must take the property under the •contract or not at all. What we have just said we think sufficient to dispose of appellant’s fourth, ninth, sixteenth and seventeenth assignments of error, so far as the purposes of this ■opinion render such disposition necessary.
During the progress of the trial the plaintiff was permitted, over objections by defendants, to prove by persons engaged in the cattle business that, when a contract is made between cattle men in that section for the delivery of “yearlings,” they are expected to deliver cattle born at any time from the first of January to the first of June of the previous year; and that, by the custom of the country, in the term yearlings, cattle from ten to fifteen months old were included, provided their average age was one year. In the admission of the evidence we think there was no error. It is apparent that it would be impracticable for any one to deliver, on a day certain, a thousand or more cattle, each one of which should be precisely twelve months old, and that therefore, in a contract of this character, the term yearlings can not be literally applied. Some deviation must be allowed from the literal import of the word, and, if the limits are not prescribed in the contract itself, the custom of the coun try and trade, when such custom exists, may be appropriately *388resorted to in order to define its meaning. Such a custom is* reasonable and is usual in most branches of commerce. The. objections to the testimony were, first, because the word was not ambiguous; second, “because parol evidence of custom was not admissible to vary a written contract,” and third, “because-, proof of such custom as was alleged in the petition would add: the word ‘average’ to the written contract.” These objections.' were not well taken. The court’s charge upon this subject was-' in accordance with the views we have expressed, and, in' our opinion, was not erroneous.
In the nineteenth and twenty-first paragraphs of his answer, defendant sought to claim damages for the wrongful suing out of the writ of injunction. These parts of the answer were excepted to and the exceptions sustained, and the ruling of the-court thereon is assigned as error. In support of the ruling, appellee asserts that damages for the wrongful issue of a writ of injunction can only be recovered after the injunction has’ been dissolved either in whole or in part. It may be that if-there was no other ground for reversal of the judgment—the injunction having been perpetuated—the ruling of the court upon this matter might be deemed harmless. But if the proposition be that a defendant in a suit in which an injunction has been wrongfully issued can not set up for damages growing out of the abuse of the writ, we can not assent to it. But it is not clear upon what ground the defendant claims that the writ was wrongfully issued in this case. His contention that plaintiff had no lien, can not be maintained. The agreement that he might sell, was without consideration and can not be held to-operate as a waiver of the stipulation in the contract to give a mortgage. As long as the lien exists, defendant could not lawfully sell more than the equity of redemption in the property which was subject to it. Hence it is not seen that he could have been damaged by being restrained from doing that which he had no right to do. If the averments in the pleas in reconvention had shown that the lien had been discharged, or that defendant owed plaintiff nothing under the contract sued upon, they would have presented a case which would have entitled defendant to damages. ' But this, as we construe them, they failed to do, and we therefore conclude that the court did not ©rr in sustaining the exceptions.
The twelfth and thirteenth assignments of error present the most important question in the case, and will be considered together. They are as follows:
*38912. “The- court erred in his third charge in instructing the jury that the defendant could not recover for cattle that were diseased at the time of delivery, and afterwards died of said disease, unless the plaintiff knew at the date of delivery that they were so diseased, and in not charging as requested by defendant in his fourth charge asked, that plaintiff was liable, if by use of reasonable diligence he might have known they were so diseased before delivery.
13. “The court erred in instructing the jury in his third charge, that “upon the sale of animals where both buyer and seller inspect the animals, and they are then and there infected with a latent disease unknown to both parties, if the animals afterward die of disease, the loss falls upon the buyer and not the seller, unless the latter has given a special warranty to the former,” and in not charging as requested by defendant in his second charge that the words “good merchantable yearlings in the contract are a special warranty condition.”
The contract stipulates for the delivery of “good merchantable cattle.” The defendant introduced evidence which tended to show that at the time the cattle were delivered they were infected by a disease which was not discoverable by inspection, and that by the reason of this disease many of them died. This applies both to the cattle which were sold by defendant to Shiner & Williams, and those which he retained in his own pasture. The question is: If the cattle were affected with a latent disease when they were delivered and this was known to neither party, must defendant bear the loss which resulted from the unsoundness? It is insisted on behalf of appellee, that the rule of caveat emptor applies in its full force and that he is not responsible, while appellant claims that the words “good merchantable” imply a warranty, and that plaintiff must make good his loss from the disease. These words are descriptive of the cattle to be delivered, but can hardly be held to imply a warranty in its technical sense. The distinction between representations which are held to warrant an article and words which merely describe property which is contracted to be sold, is clearly recognized in Jones v. George, 61 Texas, 345, and is sound in reason and supported by the authorities which are there cited.
The buyer may accept an article sold with a warranty, though he may know it is not such as is warranted, and may *390recover damages for the breach. But if there be no warranty and the article tendered be not such as is described in the contract, and this be known to the purchaser, he must either refuse it and rescind the contract or accept it and abide by the agreement. If, however, the property be not such as is described, and the defect be such as can not be discerned by the exercise of reasonable care, and the buyer do not discover it until he has made such disposition of the property that he can not return it to the seller, then he may recover his damages by reason of the seller’s failure to comply with the terms of his contract. (Jones v. George, supra.) This brings us to the question, what is meant by the words “good merchantable cattle” in the contract under consideration? Do they mean cattle which at the time of the delivery were merely in such condition and of such appearance as to be salable? or do they mean cattle which were not only salable but sound? If the word ¡ “merchantable” stood alone, the question would be more difficult, but even in that case it might seriously be doubted whether cattle infected with a latent disease which was likely to be developed in a short time, could be declared merchantable for the purposes indicated in this contract. It was probably not contemplated by the parties to this agreement, when it was entered into, that the cattle would be immediately sold. The credit which was extended and the lien which was retained, are inconsistent with that idea. But at all events it is our opinion that some meaning must be attached to the word " good,” and that we must interpret the contract as if it read “good and merchantable cattle.”
Can live stock which are infected with a disease, though it be not ¡discernable by a buyer upon inspection, be said to be “good” in any proper sense of that term? We think not. The word is very comprehensive in its meaning, and as applied to-cattle bought for purposes of breeding and sale implies freedom from existing disease. In Moore v. Morris, 20 Illinois, 255, the meaning of the word “good” in the phrase “good current money,” came up for determination, and it was there held that the phrase meant not merely money which was good as currency, but money which was good under the Constitution and the then existing laws, namely such gold and silver coins as. were then a lawful tender. So here we hold that the contract in this case calls for the delivery of cattle not simply good for the purposes of sale, but also good in fact; that is to say, for *391cattle inherently sound. We therefore conclude that the court erred in giving and refusing instructions, as appellants complain in the assignments under consideration. For these errors the judgment is reversed and the cause remanded.
Opinion delivered March 27, 1888.Reversed and remanded.