Samuel Freeman Miller

“ The parties alike interested in preserving the cattle were upon the ground. The cattle were dying in large numbers from some cause. Would a change of food suggest itself to meet the contingency? If so, there would be a reason and a motive for that change.' He then recites what Bilby says about the contract, and Coleman's denial of it, and that an unimpeached witness was called by Bilby to whom Bilby had repeated the agreement in the presence of Coleman; that a number of witnesses testify the cattle were put upon corn about the time that the change was claimed to have been made in the contract ”

“ Bass, of the firm of Rosenbaum, Bass & Co., who resided at Council Bluffs, was to be the judge. The expense of transporting the cattle to Dawsonville, Missouri, where Mr. Bilby resided, was to be paid by plaintiffs; but if Mr. Bilby should pay any of that expense, he was to be repaid, with 10 per cent. interest upon his money on final settlement. There is also evidence to show that Mr. Bilby was a man of means, owning extensive lands in the neighborhood of Dawsonville, and accustomed to the business of feeding cattle ”

“ Evidence, however, was offered by Bilby tending to show that during the winter in which these cattle died he had produced the hides to Coleman, counted them to him, and requested him to accept the delivery of them. There was also testimony to prove that during the succeeding summer the hides decayed, and became offensive, and could not be produced at the time the cattle were to be delivered. ”

“ Unless you find that a tender of these was made by defendant to plaintiffs, in which latter case the defendant would not be liable for them, there is no proof before you as to the value of the hides, and, in order to recover their value, the plaintiffs would have to show it. ”