Curtin

This is an appeal by the defendant from a judgment rendered and entered in favor of the plaintiff and against the defendant.

The action arises out of a written contract entered into by and between the parties on June 1, 1919, for the sale of ninety head of cattle by the plaintiff to the defendant.

The said contract provided that the plaintiff would sell to the defendant and that the latter would purchase and receive ninety head of “fat cattle” as follows: Seventy-five head of cows at seventy-five dollars per head; five bulls at seventy-five dollars per head; one bull at twenty dollars and nine head at a price to be later agreed upon or at the time of the selection of the cattle by defendant or its agent. Upon the execution of said contract the defendant paid to the plaintiff the sum of two thousand dollars on the purchase price. The contract further provided:

The specific controversy between the parties is as to the seventy-five head of cows which were delivered to the defendant, there being no dispute as to the bulls delivered under the contract.

It appears that the plaintiff is an attorney at law, and that at the time the cattle were selected (on the twenty-fourth day of…