Armstrong's Adm'r v. Keith

• Decision Date: 01 January 1830
• Citation: 26 Ky. 153
• Parties: Armstrong's Administrator v. Keith,
• Court: Kentucky Court of Appeals

26 Ky. 153

Armstrong's Administrator v. Keith,

Court of Appeals of Kentucky.

January 1, 1830

Assumpsit. Sale.

ERROR TO THE BRACKEN CIRCUIT; WM. P. ROPER, JUDGE.

Crittenden for appellant.

Marshall for appellee.

OPINION

UNDERWOOD JUDGE:

The appellant's intestate, in his lifetime, purchased a quantity of drugs and medicines in Philadelphia, for the appellee and defendant in the circuit court.

It appears from a letter of the defendant, directed to the intestate, that there was money owing to the defendant, in Culpepper county, Virginia; and which, the defendant contemplated, should be collected by the intestate, and laid out in the purchase of the drugs and medicines for the defendant. The letter, anticipating a possible failure, in getting the money, says: " But, if you should not collect the money, and can be assured of it this fall, you can make the purchase, and I will (if Providence pleases), go in this fall, late, collect the money, and fill the engagement; otherwise, you, if agreeable, can recommend me to the most approved apothecary, for honesty and integrity making this arrangement, that as fast as the medicine can be cashed, it shall be transmitted to him."

It is obvious, from the foregoing extract, that the defendant expected the plaintiff's intestate, to obtain for him, a stock of drugs and medicines, whether the money was collected in Culpepper, or not. It is equally clear, from the request, that the intestate should recommend the defendant to an apothecary, that such recommendation might amount to a guarantee, to pay, or secure the payment, of the amount of the debt contracted, for the medicine, which the intestate should purchase for the defendant. Drugs and medicines were purchased on credit, for the defendant, to the value of $600, according to the apothecary's bill, which was made out in the name of the defendant, as though the sale had been made directly to him. The defendant received the drugs and medicines, from the plaintiff's intestate, and vended some of them, at a large profit, and made use of the rest, as a physician, in the course of his practice. The plaintiff's intestate paid for them to the apothecary, in Philadelphia, and having died, his personal representative, instituted an action of assumpsit, against the defendant, for money lent and advanced, laid out and expended, to his use, and at his request, by the intestate.

At the trial, all the foregoing facts were proved. The evidence having been concluded, the defendant moved the court to instruct the jury to find, as in case of a non-suit. The court gave the instruction, upon the ground, that the plaintiff's intestate had no authority from the defendant to pay the apothecary; that the plaintiff's intestate was not bound to the apothecary; and, that the intestate had acted in the character of a volunteer.

The jury, penetrated by the sense of the injustice likely to result, rejected and disregarded the instructions of the court, and found a verdict for the plaintiff. A motion was made...