9 Ind. 561 | Ind. | 1857
Assumpsit commenced in March, 1853. The declaration is in the old form, containing several counts. The trial was under the new practice, and by the Court. At the request of parties the finding was special. 2 R. S. p. 115, s. 341. The Court found for Allen, the defendant, and gave judgment on the finding. White’s motion for a new trial was overruled, exception taken, and
The evidence is, in substance, that in September,, 1848, White, by Matlock, his agent, contracted with Allen for 400 head of good merchantable hogs, to be delivered at Madison, between the 20th of November and the 20th of December, 1848, at the rate of 2 dollars and 75 cents per hundred pounds net. The hogs were to average 180 pounds net, and be well corn fatted. The contract was not reduced to writing, but there was 200 dollars paid in hand to Allen. They rvere to meet the next day, reduce the contract to writing, and 200 dollars more was to be paid, or left with one Hammond. It further appears that White, by his agent Matlock, was ready at the time and place; but that Allen failed to attend, and subsequently refused to perform, &c.
The record shows several bills of exception taken by Allen in the progress of the trial. But as there are no cross-errors assigned we cannot notice them.
White assigns several errors which all center in the special finding. That finding is in these words: “ The Court find specially, that there was no contract between the parties, for the reason that it was not complete till it was reduced to Writing. But that, so far as it was made, the terms thereof were correctly'stated in the declaration; and that the plaintiff had complied with the alleged contract, by leaving the money, 200 dollars, at Hammond’s. Further, that the Court does not’find damages for the plaintiff for the failure to deliver the hogs, for the sole reason that the Court find that the contract was not completed till it should be reduced to writing.”
The declaration alleges special damages; and in support of that point, it is proved that at the time and place of delivery, the ruling price was 3 dollars and 40 cents per hundred — an advance over the price contracted for, of 65 cents per hundred.
And the single question presented is, did the Court rule the law correctly in holding the contract incomplete.
The Court expressly find that the contract is, in other
We are of opinion that the plaintiff was entitled to re- . cover for a breach of the contract on the part of Allen.
The judgment is reversed, with costs. Cause remanded, &c.