42 Ky. 51 | Ky. Ct. App. | 1842
delivered the opinion of the Court.
If there was a parol agreement between the Jones’s and Chiles’s, that the delivery of the hemp by the former, should be postponed beyond the day mentioned in the covenant between them, which fixed the price to be paid on delivery, we are of opinion that such agreement constituted a new parol contract between the parties, identical with the terms of the written contract, exceptas
These principles being settled in favor of these several actions, the questions on which the right of recovery in each depends, are, 1st, Whether John Chiles confirmed or assented to the contract as originally made by Iris' partner, T. D. Chiles, in the name of the firm, as to which there is sufficient evidence in each case to authorize a finding in the affirmative; 2d, Whether, while the covenant remained in force, there was any agreement between the parties thereto, postponing the time of delivery, and, 3rd, Whether the delivery made to Newman’s order, was by the authority or direction of Chiles & Co., and therefore a performance of the said parol'agreement, or whether it was made under a new and independent contract between the Jones’s and Newman, made before the delivery of the hemp, or arising upon that fact.
On these two last questions, the testimony of Thomás T. Jones, who was a wetness in the suits brought by John Jones and B. T. Jones, affords ample ground for finding that there was such a parol contract of postponement between the parlies to the covenant, and that the delivery afterwards made was in pursuancé of that contract and by authority from Chiles &Co. And although in the case in which Thomas T. Jones was plaintiff, there was no
Did they abandon their contract at six dollars per 100, trusting merely to a falling market? Did they abandon the responsibility of their neighbors, Chiles & Co., and credit Newman, who lived at a distance? In making the original contract they did not know that Newman was to have the hemp, why did they deliver it to him afterwards upon his mere request, without any stipulation from him as to price or terms of payment? May it not be fairly presumed, in the absence of all evidence of any express contract with Newman, that they omitted to secure the benefit of an action on the covenant, by tendering the hemp according to its terms — in consequence of an agreement with Chiles & Co., that the delivery should be postponed, and that they afterwards made the delivery to Newman by authoiity of Chiles & Co? It is not necessary to the support of the verdict, that this should be the most rational inference from the facts — it is sufficient that it is not an irrational or illegitimate inference. And not deeming it to be so, we are of opinion that the evidence authorized a verdict for the plaintiff in each of the three cases.
The amount of each verdict seems to correspond with the price of the hemp delivered by the plaintiffs respectively, charged at $6 per 100 lbs., with six per cent, interest from the time of delivery to the rendition of the verdict; and the evidence, to say the least of it, did not require that any deduction should be made from the contract price. For although the witness who received the hemp for Newman, says that after taking it to the factory it was discovered that some of it was inferior; he speaks merely in general terms, without any specification on which a deduction could be safely made; and besides, there seems to have been no offer to return or reject the hemp after the discovery, nor any notice to the Jones’s, or any of them, that any objection existed. The verdicts, therefore, cannot be regarded as excessive.
The instructions given by the Court were in conformity with the principles of this opinion. There was no error in overruling the motions for a nonsuit in each case. Wherefore, perceiving no error to the prejudice of the defendants in the progress of the trial, or in refusing to grant a new trial on their motion, the judgment in each of the three cases is affirmed.