Field, C. J. concurring.

Suit was brought on an agreement for the sale of certain cattle. This agreement was evidenced by a memorandum in this form: “ January 24th, 1860, sold to Michael Maher forty head of heifers, two years old in spring, to be delivered to him as soon as we can *416collect them up off the plains—three weeks at the furthest— American heifers. The title we guarantee. C. & J. Riley.” The sum of about one thousand dollars was the consideration of this contract, it being the price agreed on and paid for the cattle. The complaint avers the breach of this agreement to deliver the cattle. The common counts are also added. The Court instructed the jury, if the defendants did not have the cattle ready for delivery at the time mentioned in the agreement, they should find for the plaintiff, and in assessing the damages, they might find the amount of purchase money and ten per cent, interest, or they might find the highest market price of the cattle to the time of trial.

We think there was no error in this instruction. It affirms the doctrine in Dabovich v. Emeric, 12 Cal. 171; Sedg. on Dam. 264.

We have examined attentively the argument of the appellant and the several points made. We think that the assignments of error are not maintained, but as a detailed examination would settle no new principle, we cannot, in the pressure of business, go into any further criticism of the several points taken.