Beard v. Sloan

30 Ind. 279 | Ind. | 1868

Gregory, J.

Suit by Sloan against Beard on a contract for the sale and delivery of com. The complaint is in two paragraphs. Tho first avers that on, &c-., the defendant entered into a parol agreement with the plaintiff, wherein he agreed to deliver to him at the' station Needham, on the Cincinnati and Martinsville railroad, on the cars--of the company, fifteen hundred bushels of good merchantable corn, in the ear; that in consideration thereof, the plaintiff agreed to pay the defendant, on delivery, eighty cents per bushel therefor; that at the time of making the contract, the plaintiff paid the defendant five dollars thereon; that the corn was to be delivered between the 7th and 12th days of September, 1867; that the plaintiff’, relying upon the agreement, sold the corn to one William Joice for ninety cents per'bushel; that the corn was worth ninety cents per bushel at the time and place of delivery; that the defendant failed and refused to deliver the corn at the station Needham within the time agreed on, to the plaintiff's damage in the sum of five hundred dollars.

It is averred in the second paragraph, that on, &c., the defendant agreed to and with the plaintiff, to sell and deliver to him at the station of Needham, on the Cincinnati and Martinsville railroad, in Johnson county, Indiana, one thousand bushels of good merchantable corn, in the ear, at eighty cents per bushel; that at the time of making the contract, the plaintiff’ paid the defendant thereon the sum of five dollars, in part payment of the purchase money of the corn; that the defendant agreed to deliver the corn between the 7th and 12th days of September, 1867; that the plaintiff was present at the time and place agreed upon, ready to receive the corn, but that the defendant wholly neglected and refused to deliver it; that the corn was worth ninety cents per bushel at the time aud place of delivery.

A demurrer to each of these paragraphs was overruled.

Both paragraphs are fatally defective in not averring that the plaintiff was ready, upon the delivery of the corn, to pay the defendant the price, according to his promise. Smith v. Smith, 8 Blackf. 208.

The second paragraph is also defective in omitting- the averment that the plaintiff promised to pay the defendant for the com on delivery. This paragraph does not show that there was any obligation on the plaintiff to receive and pay for the com.

There were questions made on the answer, and in the progress of the cause, after the overruling of the demurrers to the complaint, but, as there was a trial on a bad complaint, these become immaterial.

8. P. Oyler and D. W. Plowe, for appellant. £>. D. Banta and G. Byfield, for appellee.

The judgment is reversed, with costs, and the cause remanded, with directions to sustain the demurrers to the complaint, and for further proceedings.