72 SALE AND MORTGAGK. 



latter's consent, and the horse dies, there is no acceptance 

 within the meaning of the Statute of Frauds, and the buyer 

 is not Hable for the price.^* 



In the sale of oxen a deHvery of the brass knobs which had 

 been worn upon their heads is not a symboUcal or construc- 

 tive deHvery of the oxen, unless by special agreement.^* 



A contract for the delivery of a certain number of cattle is 

 severable and, if the purchaser accepts and appropriates 

 some of them, he must pay the price, less the damages sus- 

 tained by reason of the failure to complete the delivery.^^ 



25. Animals Kunning on the Bauge. — Cattle on a range which 

 is common pasturage, though actually in the possession of no 

 ■one, are constructively in that of their owner, and upon the 

 sale thereof a warranty of title will be impHed.^" Though 

 there can be no delivery, the general property vests in the 

 purchaser, and he can claim nothing by way of recoupment 

 if he fails to reduce the estimated number into his posses- 

 sion, where there has been no fraud or misrepresentation and 

 he knew the number and quality of the stock purchased.^^ 

 The parties are entitled to a reasonable time after the sale 

 to prepare for and give proper notices of a rodeo, in order 

 that they may separate the cattle purchased and mark and 

 brand them. When they are thus collected and marked with 

 the purchaser's brand, and then allowed to pasture on their 



" Tempest v. Fitzgerald, 3 B. & Aid. 680. And see Carter v. Toussaint, 

 5 B. & Aid. 85s; Branigan v. Hendrickson, 17 Ind. App. 198. Where pos- 

 session has passed and an additional price is to be paid in the event of a 

 successful test within a definite time, the purchaser is not relieved of such 

 liability, if the sickness of the animal prevents the test, it being shown 

 •otherwise that it would have been successful: Deyo v. Hammond, 102 

 Mich. 122. A promise to sell a colt at a certain sum, if sound at five 

 •months old, does not require a sale and delivery on the last day of the five 

 months, but within a reasonable time thereafter: Dawley v. Potter, 19 

 R. I. 372. 



" Clark V. Draper, 19 N. H. 419. 



" Saunders v. Short, 86 Fed. Rep. 225. " Budd v. Power, 9 Mont. 99. 



"' Cockrell v. Warner, 14 Ark. 345. 



