The facts sufficiently appear in the opinion. The litigation in this case grew out of a partly printed and partly written contract for the purchase of cattle. The following is a copy, the written portions being shown herein by italics:
"Stockville, Nev., May 15th 1898.
"Received from N. Eager the sum of Six Hundred Dollars, the receipt of which is hereby acknowledged as part payment and forfeit money on about three hundredhead of good, average, smooth, full age, thrifty cattle, consisting of about the number of each class as given below, and at the prices there given: *Page 230
About 50 head of One-year-old steers at $18.00 per head."Calves to not be counted but thrown in free of charge." 30 " " Two " " " " 22.00 " " " 25 " " Three and four year old Steers ........ " 27.00 " " " -- " " Four-year-old Steers " 27.00 " " " 8 large Bulls .................. " 16.00 " " " -- Head of Stags ............... " ___ " " " 20 head of One-year-old heifers " 14.00 " " " 20 head of Two-year-old heifers " 16.50 " " " 80 head of Cows 3 to 9 years old " 19.50 " " " 65 " " " " with calves by side ............ " 25.00 " "
"The above cattle are to be delivered at Willow creelin Steptoe Valley, Nev. _____ in good healthy condition and in good shape for driving or shipping, from 1st day of June to 2d day of June 1898 at the option of buyer, he to give _______ days notice of date of delivery. Said cattle to be carefully handled, and not overdriven while being gathered and taken to place of delivery, and are not to include any cripples, swaybacks, blind or lame ones and no Holstein, Jersey or Mexican blood.
"Balance of Purchase price to be paid on delivery of cattle and completion of this contract.
"Remarks.
"Mr. Mathewson agrees to put in all the cattle he getson his contract with Geo. Halstead, John Tioni, Geo.Dugan, Eugene Locke all the small bunches that come withthem, and fifty or more of his own cattle branded 8 onleft hip.
"G. A. Mathewson.
"N. Eager."
The primary question in the case was: What is the proper interpretation of this contract?
Appellant claims that under the proper interpretation he was not required to deliver any specified number of cattle; that, under the rule that written parts of contracts control printed, the written parts, under the head of "Remarks," in this contract, control the printed, in the main body of the contract; and that therefore he was to deliver to respondent only what he might obtain on the four contracts mentioned *Page 231 in the contract in contest here, and from the "small bunches" and 50 of his own cattle. Such an interpretation would lead to this result: Had appellant delivered none from the four mentioned contracts or the "small bunches," or, say, one from each (that is, 5, and then, in addition, 50 of his own), he would, by thus delivering 50, or at most 55, head of cattle, adding 10 per cent by proved custom, have complied with both the letter and the spirit of his contract. We think this is not a correct interpretation. It carries the rule of superiority of written over printed matter too far; that is, to the annihilation of the printed matter, when all the parts, the written and the printed, can be reconciled with each other. We do not deny that, when the written and the printed parts of contracts are antagonistic and cannot be reconciled, the written should generally control; but when there is only apparent antagonism, and reconciliation is reasonably easy, we think the rule of reconciliation should govern.
Taking the contract in this light — that is, of reconciliation — appellant agreed to deliver to respondent about 300 head of cattle, to be made up of all the suitable cattle that he should get on his four contracts, and from the "small bunches" and 50 or more of his own cattle, should more than 50 be necessary to make up the number agreed upon, to wit, about 300. Taking the contract in this light, contended for by appellant, might have resulted in this: Respondent might have been compelled to receive and pay for a very large number of cattle. Suppose each of the appellant's four contractors had delivered the full number of cattle by him contracted for, and 10 per cent in addition, as the evidence shows that, by the custom of cattlemen, 10 per cent plus as well as 10 per cent minus is allowable; then respondent might have been compelled to receive and pay for as follows:
From Dugan ............................................ 100 " Tioni ............................................. 34 " Halstead ......................................... 100 " Locke ............................................. 45 Total ................................................. 279Ten per cent of 279 is 27, and adding this would make *Page 232 306 (279+27=306). To 306 the 50 of appellant's own cattle added would make 356 (306+50=356), as the number that respondent might have been compelled to receive. Add to this 356, the possibilities under the words "or more" in the phrase "50 or more of his own cattle," and there might have been an indefinite number of cattle deliverable, under this view of the contract. For if appellant could, under the phrase "or more of his own cattle," have added as many as he may have chosen, he might have chosen to add 1,000, making 1,356, or, indeed, any number. It seems that the number deliverable under the contract inevitably turns upon the "three hundred" mentioned in the main body of the instrument of contract, and the reconciliation view above mentioned is the true one. It should, perhaps, be observed here that the pivotal words "three hundred," are not only in the main body of the contract, but are themselves in writing; and to this extent is removed any foundation of fact for invoking the rule of superiority of written over printed matter.
Appellant claims that the instruction given by the court as to apportioning the forfeit money, to wit, $600, was erroneous, and for this reason the judgment and order of the trial court should be reversed, and a new trial ordered. This would probably be true if the interpretation of the contract contended for by appellant were correct. For it would seem, under the authorities cited, that in general forfeit money paid on a contract cannot be recovered when the party receiving the forfeit money is in no respect in default. If the interpretation of the contract contended for by appellant were correct, then it would seem that there is nothing appearing in the matters before this court showing that appellant was in any respect in default. But believing, as we do, that the correct interpretation of the contract is that above given, to wit, for about 300 head of cattle, and that the delivery of only about one-half of that number, to wit, 150, was not a sufficient compliance with the terms of the contract on the part of the appellant, it follows that the error complained of by appellant, if it was error, was in his favor, and therefore he is not in a position to take advantage thereof. *Page 233
There are some other assignments of error, but, if the view above stated be correct, they become immaterial.
It is ordered that the order of the trial court denying the motion for a new trial in this case, and the judgment following said order, be affirmed.
BELKNAP, C. J.: I concur.
TALBOT, J., did not sit in this case, he having presided at the trial of the case in the court below.