Caldwell, Hunter & Co. v. Dawson
| Decision Date | 17 January 1862 |
| Parties | Caldwell, Hunter & Co. vs. Dawson. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE HARDIN CIRCUIT COURT.
JOHN E. NEWMAN, for appellants.
CHAS. G. WINTERSMITH, for appellee.
JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:
Dawson made two contracts with the appellants, one in March, 1851, the other in January, 1852, by each of which he agreed to deliver to them, at the Crooked Creek Furnace, in Bullitt county, 50,000 bushels of good charcoal, for which they agreed to pay him 3½ cents per bushel. Dawson sued upon said contracts, alleging that he had delivered 69,576 bushels under the first, and 56,887 bushels under the second contract; and that the appellants had not paid him therefor, but owed him a balance of $800 over and above what he had received from them under said contracts, for which he asked judgment. A demurrer to the petion having been overruled, the appellants filed an answer and counter-claim and an amended answer, in which they denied that Dawson had delivered the quantity of coal alleged by him, and stated that they had no knowledge nor information to form a belief as to the quantity he had delivered; and alleged that they had paid him, in money and merchandise, $3,522.46, which more than paid him for all coal delivered under said contracts; and asked for a judgment against him for such sum as might be found in their favor upon trial. Dawson filed a reply, admitting that he had received pay for all the coal set forth in the petition except the amount of $800, which was, in effect, an admission that he had received more than the appellants alleged. Dawson obtained a verdict and judgment for $786.69, from which judgment this appeal was taken.
Upon the trial the defendants asked for an instruction, "that the plaintiff cannot recover in this action for more than 100,000 bushels of charcoal, that being the amount specified in the two written contracts sued on;" and for another instruction, that "the plaintiff cannot recover in this case for more than 100,000 bushels, unless the defendants had knowledge of the delivery of the excess, and in such knowledge received the same," both of which were refused. In our opinion, if the defendants received more coal than they were entitled to, they should pay what it was worth, whether they had knowledge of the excess or not. But the petition laid no foundation for such recovery. It declared upon the contracts, which entitled the plaintiff to only $3,500, as pay for 100,000 bushels, and contained no allegation as to the value of the coal, and the reply admits that the plaintiff had been paid for the 100,000 bushels. The plaintiff should have been allowed to amend his petition, but upon the pleadings as they stand he was not entitled to recover.
As the plaintiff will probably amend his petition upon the return of the cause, it is proper to notice other questions arising upon the record. Upon the trial the principal question was how much charcoal had been delivered. The defendants filed a statement showing the number of wagon loads received. The difficulty was to determine how many bushels the wagon contained.
Congress has not passed any law to fix the standard of weights and measures, as it is authorized to do by the Constitution. The laws of this State, therefore, govern the subject. But Professor Hassler, who was employed for that purpose by the Secretary of the Treasury, under a resolution of the Senate, adopted May 29, 1830, prepared standards of weights and measures, for the use of the custom houses; and by a joint resolution of Congress, adopted June 14, 1836, the Secretary of the Treasury was directed to furnish a complete set of those weights and measures to the Governor of each State, "to the end that a uniform standard of weights and measures may be established throughout the United States." These standards were adopted by the Legislature of Kentucky, by an act passed in 1839, (3 S. L., 583,) and by chap. 105, sec. 1, of the Revised Statutes, which declares that "the weights, measures and balances received from the government of the United States, now in the custody of the Secretary of State, shall continue in the custody of that officer, and shall be the standard of weights and measures in this State." According to this standard, a bushel is a measure containing 77.6274 pounds avoirdupois of distilled water at the temperature of the maximum density of water and barometer 30 inches at 62 dg. Fahrenheit. (Homan's Cyclopedia of Commerce, page 1943.) This, as is stated in Professor Alexander's "universal dictionary of weights and measures," is the same as the Winchester bushel, and contains 2150.42...
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