35 Ky. 509 | Ky. Ct. App. | 1837
delivered the opinion of the Court.
Ross and Ely—being indebted to G. W. Adams, in two several sums due by notes—enjoined a judgment he had obtained for upwards of thirteen hundred dollars,upon the note last due—alleging, among other things not neces
That decree is now to be revised.
First. The decree for costs is undoubtedly unreasonable and unjust; because the injunction having been perpetuated for even a comparatively small sum, as to which it was necessary to file the bill for discovery and injunction, the complainants were, according to both principle and practice, entitled to a decree for costs, against the defendant Adams, instead of being subjected to the payment of costs to him.
Secondly. But there is a more radical and important error. The plaintiffs in error were entitled to a perpetuation of their injunction for a much larger sum than that allowed by the decree.
It is evident that the pork described in the account
As then the defendant Adams not only has exhibited no satisfactory account of the sales of the pork, which he received from the plaintiffs in error, but presented a delusive account of sales of other, and in some essential respects, inferior pork, we can have no doubt that he is justly chargeable with the actual net value at New Orleans, of that which was delivered to him. And the facts exhibited on the record furnish data for ascertaining that value with satisfactory and sufficient certainty: first—they show that all the pork delivered to him was of good quality and in good condition; secondly—they show that fifty barrels were prime, and eighty five barrels mess; and, thirdly, the account exhibited by Mams himself shows that his commission merchants sold good mess pork at an average price of twelve dollars, and good prime pork at an average of at least ten dollars a barrel.
According to these facts, the aggregate gross amount for which, according to the most favorable presumptions for Adams, which should be judicially indulged—he should be charged, is one thousand five hundred and twenty dollars; which—after deducting the amount of charges which, according to his own account, could not be more than three hundred dollars—will leave a net balance chargeable against him of twelve hundred and twenty dollars, and for which, in our opinion, the plaintiffs in error are entitled to a credit, first on their first note, and next on the judgment enjoined.
Wherefore, the decree of the Circuit Court is reversed, and the cause remanded, with instructions to render a decree according to the foregoing opinion.