The appellees brought an action for goods sold and delivered, against the appellants. The complaint contained only a single paragraph, in the form of the common count, ■ accompanied by a bill of particulars. The defense was a denial of all the allegations in the complaint. On this issue there was a trial by a jury, verdict for plain
The evidence and instructions all appear in the record by bills of exceptions. The facts are these: “The appellees, in the spring of 1856, were wholesale dealers in glass, residing at Pittsburgh, in the state of Pennsylvania. The appellants were hardware merchants, residing and doing business at Lafayette, in the state of Indiana. About the 12th day of March, 1856, Johnson, one of the firm of Johnson and Patton, called on the appellees, at their place of business in Pittsburgh, and verbally ordered fifteen half-boxes of glass, to be shipped to the appellees at Lafayette, by the first steamer that should leave Pittsburgh for the Wabash river. At the time this order was made, the Ohio river, at Pittsburgh, was closed with ice. On the 25th of March, 1856, the river was open for navigation; and on the 27th, the steamboat Latrobe, freighted at Pittsburgh, left that port for the Wabash river, but the glass which had been ordered £y the appellees, was not shipped on the Latrobe, which was the first boat. The appellants knew of the arrival of the Latrobe. On the 2d of April, 1856, the glass was put on board the Gov. Powell, the second steamboat that left Pittsburgh for the Wabash river. The Powell left Pittsburgh on the 2d of April, and owing to the difficulties of the navigation in the Wabash river, got no farther than Terre Haute, where she discharged her cargo, including the glass consigned to the appellants, leaving it in the hands of a warehouseman, and returned to the Ohio river. At the time the glass was put on board the Poiuell, the appellees took from her commander a bill of lading, ■which, with the bill of goods made out by the clerk in the house of the appellees, they forwarded by mail, to the appellants. In May or June, following, the appellees received a letter from the warehouseman at Terre Haute, informing them that the glass had been stored wdth him. In Aiigust, following, the appellees drew a draft on the appellants, for the amount of their bill, payable in September, six months from the time the glass, was ordered. This draft was pre
The appellees used due diligence to ship by the Latrobe. It did not receive general freight. The Powell was the first boat that did.
We think it plain that it was not a condition of the contract of purchase of the goods in question, that they should be sent by the first boat leaving Pittsburgh for the Wabash. It was not then known to either party which boat, of all those on the waters, would leave first. It might happen to be a worthless and entirely unsafe one. The direction meant no more than that the goods should be forwarded at the earliest suitable opportunity. But, in fact, the goods were sent by the first boat, within the direction. The Latrobe had been previously chartered by a few shippers, for ■whom, alone, she did business, and was not open to general freight. The Powell was the first boat, thus open, that left Pittsburgh the spring of the purchase of the goods, the price of which is sued for.
But it is contended that the contract of- sale is void by the statute of frauds, and hence, that a suit cannot be maintained upon it.
And the question is, shall the common law, or the statute of this state, be applied in determining the case?
When the question has arisen, in this state, upon the admission of a document from another state, as evidence, which, by the common law, would not be admissible, while, by our statute, such a document of this state, would be admissible, the Court has applied the common law, and rejected the evidence, where the statute of the other state has not been produced. Wright v. Bundy, 11 Ind. R. 398, and cases cited.—Ind. Dig. p. 424, § 26.
The same rule has been adopted in cases involving the validity of contracts. See Titus v. Scantling, 4 Blackf. 89; Blystone v. Burgett, 10 Ind. R. 28; and, still more in point, Trimble v. Trimble, 2 Ind. R. 76. See, also, Doe v. Collins, 1 Ind. R. 24.
There is some reason for the rule of presumption as to the common law. The Courts will take 'notice of the facts that our ancestors came to this country from Great Britain, bringing that law with them; that that law, so far as applicable in this country, was in force in the thirteen original states, except as modified by the statutes thereof; that it was declared in force in the territories of the northwest by the ordinance of 1787, &e.
The Courts cannot take notice judicially of statutes of the states which may have changed the common law. See Doe v. Collins, supra.
Nevertheless, the subject is one not clear of difficulty, and doubts have been expressed as to the rule that should govern.
We have not now time to examine the subject at large, nor do we mean to lay down a universal rule. The case at bar falls within those last cited above, and will be de
The judgment is affirmed, with 1 per cent, damages and costs.