Welby

This action is for the recovery of $8,623 damages, alleged to be sustained by reason of an alleged breach of a contract of the parties by the defendants. The contract was, in effect, that defendants would purchase of the plaintiff all the steers belonging to him on the eleventh day of May, 1888, that were three years old and upwards, and that were then or that would be merchantable beef by the first day of July, 1888, the number of which was estimated by the parties to be about three hundred head.

And the parties further agreed that if there should arise any question between them as to what steers would make merchantable beef, the question should be decided by arbitration, each party to select one arbitrator, and if the two could not agree, they should select a third to settle the question.

Pursuant.to this agreement, plaintiff gathered his said band of cattle, and the defendants selected therefrom ninety head of the largest and most choice steers of said *442 band, and paid the plaintiff therefor at the rate of forty dollars per head, and requested plaintiff to have another and complete gathering of the cattle on the first day of July, 1888, at which time defendants would take…