Dissenting. — I cannot concur in the majority opinion. As stated therein, the material facts are not in controversy, and are substantially as follows: On June 17, 1916, respondent contracted to sell to appellants not less than 6,400 head of unshorn lambs out of his flocks, 15 days’ notice, seller’s option, at 8‡ per pound, to be delivered f. o. b. cars at Hill City or Ketchum, Idaho, between August 1 and September 1, 1916, and received an advance payment on the purchase price of $3,250, balance to be paid on delivery. On August. 24th respondent delivered to appellants 2,260 head of these lambs at Ketchum, and having notified appellants that he would deliver the remainder on August 31st, he drove them to the stockyards at Ketchum for that purpose. Appellants, by their agents, Otto and James Hatcher, were there to receive these lambs at that' time and place. For both shipments respondent had ordered ears from the railroad company, he understanding that the lambs had been purchased for shipment to an eastern, market. However, when this last shipment was ready for delivery on August 31st, the railroad company, because of a threatened strike, refused to accept the shipment or deliver cars to respondent unless he would sign an agreement to unload the lambs at Shoshone, the connecting way station on the main line, a short distance from the point of loading, which agreement he signed, and without which he could not have obtained the cars. Respondent now insists that this was a delivery under the terms of his contract, which gave him the option to deliver f. o. b. at Ketchum at any time during the month of August. That is, respondent contends, and the majority opinion sustains such contention, that he could under the terms of this agreement select the only day in the month in which cars *649could not be obtained for a through shipment of these lambs to market, and that appellants’ failure or refusal to accept them under these conditions worked a forfeiture of all of appellants’ rights under the contract of purchase, and gave to respondent the right to retain the advance payment made on them in June of $2,070, and the loss of the advancement in price, amounting in all to approximately $6,000.
Respondent, when the contract was entered into and also when the first shipment was made, had accepted checks or drafts drawn upon appellants at Denver; but about the time that these lambs were loaded upon cars, he informed the young men representing the appellants that unless they would immediately accept these lambs, with this conditional bill of lading which required they be almost immediately unloaded, and pay him in cash or what he regarded as its equivalent, he would cancel the contract of purchase, forfeit the advance payment and keep the lambs, and that he had a lawful right to do so. Respondent was a lawyer of many years’ experience in active practice. It should also be borne in mind that this transaction took place at a way station in the interior, where there were no banking facilities for handling a transaction of this magnitude, which, together with the Newman purchase of like nature, and which respondent was transacting, required approximately $60,000. Appellants, through their agents, succeeded in getting this amount placed in a bank at Hailey, on August 31st. In imposing this condition, respondent may have been within the terms of his contract in demanding payment in cash only, but it is so out of the ordinary, in a transaction of this kind, for a seller who has had previous similar transactions with the buyer, and has accepted his check or drafts, to demand cash under these conditions, that it evinces a purpose to prevent purchasers from carrying out their part of the agreement, so that the seller may claim a forfeiture.
The threatened railroad strike did not occur, and the carrier resumed shipment on September 2d, at which time *650appellants again endeavored to secure a delivery of these lambs, which had been shipped to and unloaded at Gooding. Respondent refused delivery, retained the advance payment made in June, and deprived the appellants of the profits arising by reason of the advanced prices then prevailing.
The authorities are not in entire harmony as to whether it is the duty of the buyer or seller to furnish cars under a contract of this hind; but this is not material in this case, because in the former shipment and in this one, the- seller actually did apply for and secure the cars, and all the authorities hold that where an agreement is not definite in this particular, that meaning will be given to it by the courts which the parties themselves, have given it. (District of Columbia v. Gallagher, 124 U. S. 505, 8 Sup. Ct. 585, 31 L. ed. 526, see, also, Rose’s U. S. Notes; Davis v. Alpha Portland Cement Co., 142 Fed. 74, 73 C. C. A. 388; Vermont Street M. E. Church v. Brose, 104 Ill. 206, 209; Consolidated Coal Co. v. Schneider, 163 Ill. 393, 45 N. E. 126.)
Respondent claims that because these lambs were cut out of his herds and the remainder had been turned back upon the summer range, because of the insufficiency of feed for these lambs at Ketchum, he was compelled to accept these cars and agree to remove the lambs from the cars at a station a few miles beyond, and insist on appellants’ acceptance of the delivery upon the terms he imposed. This-appears to me to be a thinly disguised camouflage to justify his forfeiture of the payments made in June on the purchase price, and the enhanced value of these lambs, which, with his shipment and that of his son-in-law, Newman, for whom he was also acting, amounts to approximately $12,000. They were fully equipped for earing for sheep on the range, and Ketchum is near one of the most fertile irrigated regions in the state, so that respondent was not forced to this arbitrary course of action. The record shows that the appellants were engaged exclusively in buying and shipping f. o. b. cars for eastern markets, and were not *651equipped for handling stock of this kind, or feeding or caring for them except in transit to the markets.
Under the facts disclosed by this record, the action of respondent in declaring this contract- forfeited, under all the circumstances, is so contrary to my conception of a fair standard of business integrity that I am unable to approve of it, and I do not think that a correct rule of law applied to these facts would permit him to forfeit this contract. It seems to me that it is a reproach to the law, and a reflection upon the administration of justice, to permit the seller to thus confiscate the property of a purchaser, who has been ready, willing and able to meet all the conditions of his contract of purchase, and who is prevented from doing so by shipping conditions imposed by the carrier, and which are entirely beyond his control. Neither party to this transaction was at fault for the refusal of the railroad company to accept these lambs for through shipment, and neither should be permitted to take advantage of the other by reason of such refusal on the part of the railroad company.
The majority opinion is to the effect that a vendor of livestock purchased for shipment to the market has complied with his agreement to deliver such stock f. o. b. cars when he delivers it upon cars, under an embargo of the carrier that requires such stock to be almost immediately unloaded and removed from such cars at a near-by way station. The rule is not applicable to the unusual conditions that existed in this case. No authorities are cited in its support, and I think that none can be found.
“The phrase ‘f. o. b. cars,’ when used in a contract between a buyer and a seller of commercial commodities, where the use of a common carrier is necessary, means that the seller will secure the cars, load them, and do whatever may be required to accomplish the shipment and consignment of the goods to the buyer, free of expense.” (Hurst v. Altamont Mfg. Co., 73 Kan. 422, 117 Am. St. 525, 9 Ann. Cas. 549, 85 Pac. 551, 6 L. R. A., N. S., 928; John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 *652N. W. 337; Hunter Bros. Milling) Co. v. Kramer Bros., 71 Kan. 468, 80 Pac. 963; Culp v. Sandoval, 22 N. M. 71, 159 Pac. 956, L. R. A. 1917A, 1157; Vogt v. Schienebeck, 122 Wis. 491, 106 Am. St. 989, 2 Ann. Cas. 814, 100 N. W. 820, 67 L. R. A. 756; 2 Words & Phrases, 658-660.)
(June 27, 1921.)For the foregoing reasons and upon the authorities cited, this judgment should be reversed.