Winchester & Partridge Manufacturing Co. v. Funge
Winchester & Partridge Manufacturing Co. v. Funge
Opinion
delivered the opinion of the court.
We are of opinion that, on the terms of the receipt which expressed the contract between the parties, the appellant or its agents were required to determine, on receiving the wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions ; that.the receiving the 21 and proceeding to sell them *654 was an acceptance of the 21 in payment jiro tanto of the claim; that the contract for the payment in wagons was unfulfilled, as to the i wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee under the contract.
As to the second count, it sets forth a good cause of action. That count does not involve on its face any question as to the contract evidenced by the receipt embodied in the first count.
The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct such further proceedings in the suit as may he according to la/w and in conformity with this opwvioni
Reference
- Full Case Name
- Winchester & Partridge Manufacturing Company v. Funge
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- 5 cases
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- Syllabus
- Contract. For the purpose oí settling a debt, the debtor gave to the creditor orders for 25 wagons, and the creditor gave to the debtor a written receipt, which he accepted, stating that the wagons were to be received in payment of the claim, provided they were delivered to the creditor in good condition and merchantable order, and that it was understood and agreed that if the wagons were so delivered in good condition they were to be sold for the highest prices that could be obtained for them, and the surplus, after paying the debt and cost of selling, should be refunded to the debtor ; 31 of the swagons were delivered, but none of them were in good condition' and merchantable order ; the creditor sold 19 of them and made ineffectual efforts to sell the other 3, and, after crediting the net proceeds of sale, sued the debtor to recover the balance of the debt: Held, That the receiving the 31 wagons and proceeding to sell them was an acceptance of them pro tanto in payment of the claim ; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered ; and that the price for which the 19 wagons were sold, and the selling value of the 3 not sold, had no bearing on the case, unless there was a surplus óf the proceeds of sale to be refunded to the debtor, under the contract.