David Josiah Brewer

“ They were entitled to all the cattle belonging to defendants, ranging in the places named, excepting those specially reserved; and, if there were not enough of steers in those herds of the kind described to satisfy the contract which they had made with Hawkes, they could not make good the deficiency by taking steers of a different description, all of which they had sold to plaintiffs before any attempt at delivery to Hawkes. ”

“ A deed conveys a tract of land by metes and bounds, but in terms excepts therefrom a portion thereof theretofore conveyed by the grantor. The former deed is referred to and described, but the boundaries of the tract conveyed thereby are not specified. ”

“ Finally, it is objected that the last payment was voluntary, and therefore cannot be recovered, either in whole or in part, although it was, in terms, made under protest. It appears from the testimony that the defendants refused to deliver any of the property without full payment. This was at the commencement of the winter. The plaintiffs had already paid $175,500, and without payment of the balance they could not get possession of the property, and it might be exposed to great loss unless properly cared for during the winter season. ”

“ On the trial the plaintiffs introduced this contract:
'Chicago, Illinois, June 29th, 1886.
'We have this day sold to William E. Hawkes, of the city of Bennington, state of Vermont, one thousand (1,000) head of steers, four hundred (400) two years old, four hundred and fifty (450) three years old, and one hundred and fifty (150) four years old, branded . on the left side, and M on the left side. Said cattle are on our ranch in Box Elder county, Utah, and Oneida county, Idaho, and are part of a large herd. ”