Ingram v. Matthien

• Decision Date: 30 September 1833
• Parties: INGRAM v. MATTHIEN.
• Court: Missouri Supreme Court

3 Mo. 209

INGRAM

v.MATTHIEN.

Supreme Court of Missouri.

September Term, 1833.

ERROR TO THE CIRCUIT COURT OF BOONE COUNTY.

TOMPKINS, J.

Ingram commenced his action against Matthien in the Circuit Court of Boone county, and there had judgment for five dollars, and not being content, sued out his writ of error to reverse the judgment of that court. On the trial of the cause it was proved that Ingram had sold to Matthien a lot of goods for one thousand and seventy dollars, and that on the 28th day of May, 1831, Matthien agreed to execute his note with security to Ingram for that sum of money, and that he failed to do so. The plaintiff than applied to him to execute his note according to contract, and he refused to do it. The goods were then conveyed by wagons from Fayette in Howard county, where they had been sold, to Huntsville in Randolph county, a distance of about twenty-five miles. There they were sold at auction by order of Ingram, under whose direction they had been conveyed to that place. They were sold for eight hundred dollars. The hire of a clerk it was proved amounted to twenty-one dollars, and evidence was given of other expenses as of transportation, and fees of persons necessarily employed in selling goods at auction. The plaintiff then by his counsel prayed the court to give many instructions, which were refused. The sum of the instructions prayed is, that “if the jury find Matthien agreed to purchase the goods for any given price, and failed to comply with his contract in executing his note therefor, and in receiving the goods, then the plaintiff might lawfully sell the goods: and if the plaintiff did use due diligence in selling them, and did in good faith sell them for a price less than Matthien the defendant had agreed to give, in such case the defendant ought to pay the plaintiff the difference between the price agreed on between them, and the amount of the sales of the goods after deducting all reasonable expenses.”

Both plaintiff and defendant to support their case, cite the case of Sands & Crump v. Taylor & Lovett, 5 John. Rep. 395. On the side of defendant in error, it is contended that the plaintiff in error had no right to demand the difference between the amount of sales and the price agreed on, unless he had given notice of his intention to sell and had sold at Fayette where the contract was made. On the other side it was contended that notice was not material, and the removal of the goods to Huntsville was immaterial, provided they were not therefore sold at a less price. In the case above cited from 5 Johnson, there had been a delivering of a part, and the court say, “after the defendants' refusal to accept the residue of the cargo, it was thrown on the plaintiffs' hands, and they were by necessity made trustees to manage it: and being thus...