Darby v. Hall

• Citation: 50 A. 64,19 Del. 25
• Court: Delaware Superior Court
• Decision Date: 26 October 1900
• Parties: SAMUEL W. DARBY, v. SAMUEL W. HALL

50 A. 64

19 Del. 25

SAMUEL W. DARBY, v. SAMUEL W. HALL

Superior Court of Delaware, Kent County

October 26, 1900

Superior Court, Kent County, October Term, 1900.

ACTION OF ASSUMSIT (No. 25, April Term, 1897). See facts in charge of Court.

Verdict for plaintiff for $ 455.06.

William T. Smithers and Henry Ridgely, Jr., for plaintiff.

Richard R. Kenney and Arley B. Magee for defendant.

LORE C. J., and GRUBB, J., sitting.

OPINION

LORE, C. J., charging the jury:

Gentlemen of the jury:--This is an act of assumpsit brought by Samuel W. Darby, the plaintiff, against Samuel W. Hall, the defendant, upon the following written agreement:

"Dover Del., June 13, 1896.--I have bought of S.W. Darby all his merchantable peaches grown on his farm near Frederica, to be delivered in usual size baskets, in merchantable order, on steamboat at Frederica, or if steamboat cannot receive them, then to be delivered at Felton on cars in due time for the day's fruit trains. I am to pay S.W. Darby the market price for the baskets, and twenty-five cents a basket clear of the baskets for the peaches in cash on each Saturday night during the delivery.

"SAML. W. HALL."

The plaintiff claims that under this agreement, there is due to him from the defendant the sum of $ 455.06 with interest thereon from September 11, 1896. This sum is made up of the following items, viz.: $ 395.50 as the unpaid balance of the price of 3596 baskets of peaches, delivered to the defendant on board the boat at Frederica; $ 34.61 being the loss on 770 baskets of peaches which it is claimed the defendant refused to receive, and were sold by the plaintiff to other persons at that much less than he would have received at the contract price of twenty-five cents a basket; and the further sum of $ 26.95, being the cost price of the 770 baskets which the defendant was to have furnished.

The defendant, however, insists, that he only received 3120 baskets and not 3596 as claimed by the plaintiff; and that most of those received were not merchantable, and that they were received after notice to the plaintiff that for such as were not merchantable, the defendant would only pay so much as he realized from the sale thereof; and that he has so paid in full for all the peaches received. That by mutual consent, the contract in this case was annulled on the twenty-seventh day of September, 1896, which was before the alleged loss on sale of the 770 baskets to other persons; that he is in nowise liable for such loss or for the baskets in which such peaches were marketed.

It is the duty of the Court, under the prayers of the respective parties, to interpret this contract, and announce the principles of law governing it.

The word "merchantable" in a contract, means generally vendible in market (2 Bouvier Dict. 400), and when unqualified in any way such is its general meaning. It would be difficult, if not impossible, to give an inflexible definition to the word merchantable. Much in each case would depend upon whether the article to be dealt in, is susceptible of a fixed and uniform standard, or is of a variable nature; and is also dependent upon the conditions and circumstances surrounding each case. If any particular fixed standard is sought, it should be...