McCraw v. Gilmer
| Decision Date | 30 June 1880 |
| Court | North Carolina Supreme Court |
| Parties | JACOB MCCRAW v. MAGGIE GILMER, Adm'x. |
CIVIL ACTION of claim and delivery, begun before a justice of the peace and tried on appeal at Spring Term, 1880, of SURRY Superior Court, before Buxton, J.
A jury trial was waived by the parties and by consent the case was tried by His Honor upon the following state of facts: The intestate of the defendant was a practising attorney in the county of Surry and sent to the plaintiff a letter as follows, to-wit:
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¦Oct. 25th, 1877.¦Mount Airy, N. C.¦
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MR. JACOB MCCRAW-- Sir:
If you will send me the cow I will save you eighteen dollars in the settlement of the case against your son, and I think with some effort and trouble I can save you even more than that, which I will do for you. Your wife told me that was what you wanted with the money.
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¦(Signed)¦Yours respectfully, ¦
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¦ ¦James C. Gilmer. ¦
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In consequence of the offer made in this letter, the cow within a few days after its receipt by McCraw, was sent to the house of J. C. Gilmer, who by reason of sickness of which he shortly afterwards died, was unable to attend the next term of the court, and failed to take any steps towards reducing the costs referred to in the letter, and the costs in full were collected out of the plaintiff by due process of law.
The cow was worth eighteen dollars and is still in the possession of the defendant, who claims her as belonging to the estate of her testator, J. C. Gilmer.
After paying the costs, the plaintiff demanded the cow of the defendant before bringing suit, and offered to take eighteen dollars for her, but failing to get either cow or money, instituted this action. The estate of Gilmer is insolvent.
The plaintiff claimed that the sale was conditional, dependent upon the performance of services by Mr. Gilmer, which were never performed, and that he was entitled to recover possession of the cow. The defendant, on the other hand, contended that the sale was absolute and that the title passed with the delivery, and that she was entitled to retain the possession. Judgment was rendered in behalf of the plaintiff, from which the defendant appealed.
No counsel for plaintiff.
Messrs. Watson & Glenn, for defendant .
This court cannot take into its consideration the fact...
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Oester v. Sitlington
...after delivery exists only in case of fraud or deceit in the purchase or in the procuring of the possession." See to same effect McGraw v. Gilmer, 83 N.C. 162; Farmers' Phosphate Co. v. Gill, 16 A. Lathrop, Morrow & Fox for defendant in error. (1) Revised Statutes, 1889, section 5178, can h......
- Howard v. Old Dominion S.S. Co.