Barron v. Frink

By the Court, Currey, C. J.: The defendant agreed in writing to purchase of the plaintiff a quantity of pressed hay, estimated to amount to one hundred and ninety-three tons, at the price of thirty-five dollars a ton in gold coin, which he promised to pay as follows: One thousand dollars upon the execution of the agreement, which was dated the 29th of October, 1864; one thousand dollars in thirty days from that date, and the balance as the hay should be removed by the defendant from the place where it was then in stack. The agreement further provided that the hay should be weighed at the stack, and the amount ascertained by such weighing, arid that all the money, the price thereof, should be paid before the expiration of four months from the date aforesaid, and that the hay should be removed by the defendant within that time.

The complaint contains three counts. The first sets forth the agreement in 7mee verba, with averments that thereby the defendant agreed to purchase from the plaintiff, and the plaintiff agreed to sell to the defendant the hay, at the price mentioned, which the defendant was to pay in full on or before the last day of February, 1865 ; that the amount of said hay was one hundred and ninety-three tons; that the defendant had paid on account thereof four thousand three hundred and fourteen dollars and sixty-five cents, and that there was remaining due the plaintiff two thousand four hundred and forty dollars and thirty-five cents, which the defendant failed and refused to pay, though thereunto requested. The second count is a common count for goods, wares and merchandise by the plaintiff sold and delivered to the defendant; and the third a common count for goods, wares and merchandise bargained and sold by the plaintiff to the defendant. The defendant answered, traversing generally the allegations of these respective counts of the complaint, and also traversing specially the plaintiff’s right to recover, by reason of a breach of the agreement on his part. The cause was tried before a jury, who found a verdict for the plaintiff in the sum of [488]twenty-one hundred dollars, which the defendant on motion sought without success to have set aside and a new trial granted. From the judgment entered on the verdict, and from the order refusing to grant a new trial, the defendant has appealed.

The appellant asks this Court to reverse the judgment on the ground that the first count of the complaint is radically defective—that is, that it does not state facts sufficient to constitute a cause of action.