Pleasants v. Pendleton

• Decision Date: 04 June 1828
• Citation: 27 Va. 473
• Parties: Archibald Pleasants v. William G. Pendleton. [*]
• Court: Virginia Supreme Court

27 Va. 473

Archibald Pleasants v. William G. Pendleton. ^[*]

Supreme Court of Virginia

June 4, 1828

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This was an action on the Case, brought by William G. Pendleton, in the Superior Court of Law for Henrico County, against Ralston & Pleasants. The Declaration contained various counts. The first count demanded 416 dollars 50 cents, on account of one hundred and nineteen barrels of fine flour, sold Defendants at that price, and alleged an assumpsit to pay that sum for the flour. The second count was for the same quantity of flour, and charged an assumpsit to pay so much money as the flour was reasonably worth, with an averment that it was reasonably worth the said sum of 416 dollars 50 cents. The third count was for money had and received by Defendants, to Plaintiff's use. The fourth count charged that the Defendants were indebted to the Plaintiff, in the sum of 416 dollars 50 cents, by a certain check drawn by them, on the Bank of Virginia, and delivered by them to the Plaintiff, in consideration of one hundred and nineteen barrels of fine flour, before that time sold and delivered to them, by Plaintiff, at their special instance and request, which said check so by them drawn and delivered to the Plaintiff, was in fact before presentation for payment, destroyed by accidental fire, and the amount thereof, nor any part of it, has been received by Plaintiff, nor have the said Defendants renewed the said check to Plaintiff, and avers notice of the destruction of said check, on the part of said Defendants. To this Declaration, the Defendant Archibald Pleasants, pleaded non-assumpsit, (the other partner, Ralston, having been returned no inhabitant, and the suit abated as to him,) to which Plaintiff replied generally. The Jury found a verdict for Plaintiff, and assessed his damages to 416 dollars 50 cents, with interest from 20th March, 1820, until paid; and Judgment was entered accordingly, against Archibald Pleasants.

The questions in this case, arise out of a Bill of Exceptions taken at the trial, by the Defendants, to certain opinions delivered by the Court.

That Bill of Exceptions is as follows, viz:

" Memorandum. That on the trial of the issue joined in this cause, evidence was introduced for the purpose of proving that on the 20th of March, 1820, the Plaintiff sold to the Defendant, one of the mercantile firm of Ralston & Pleasants one hundred and forty-one barrels of fine flour, of the Richmond inspection, with certain specific mill brands on them, agreeably to a list containing the number of each brand, exhibited to the Defendant, at $ 3 50 per barrel, then stored in the warehouse of J. & J. Fisher, jr., in said city, which list is in the hand-writing of the Plaintiff, in the words and figures following, to wit: " Pedlar, 62, very good; Rose's, 26; Bent Creek, 7; Fredonian, 10; Rocky Creek, 18; D. S. Garland, 13; Rockford, 5; 141 barrels, $ 3 50, $ 493 50 cents." That the Plaintiff at the same time received from the Defendant, a check on the Virginia Bank, for $ 493 50 cents, the whole amount of the price of the said one hundred and forty-one barrels of fine flour, and gave the Defendant an order on the warehouse-keepers for the flour; that this sale was effected before two o'clock of the said day, though on this point there was a variance in the evidence; a witness stating that he believed that it was at a later period: that in the course of the same day, and in the evening, the Plaintiff finding that he had mistaken the number of barrels of the fine flour which he had stored in the said warehouse, sent to the Defendants a corrected list, reducing the number of barrels of fine flour to one hundred and nineteen; which list, as corrected, is in the words and figures following, to wit: " Pedlar, 62, very good; Rose'sonly; Bent Creek, 7; Fredonian, 10; Rocky Mills, 20, (instead of 18; ) D. S. Garland, 13; Rocky Ford, 5:" That thereupon the former order was given up by the Defendant, and the check by the Plaintiff: that a new bargain was then made, by which the one hundred and nineteen barrels of fine flour, of certain specified mill brands, then stored in the warehouse of the said J. & J. Fisher, jr., were sold by the Plaintiff, to the Defendant, as one of the firm of Ralston & Pleasants, merchants in Richmond: that the Plaintiff gave the Defendant an order on the said J. & J. Fisher, jr., for the delivery of the said one hundred and nineteen barrels of fine flour, by specific numbers and brands, which order is in the words and figures following, to wit: " Messrs. John & J. Fisher, jr., Gentlemen, Deliver to Messrs. Ralston & Pleasants, one hundred and nineteen barrels of Richmond fine flour, which are stored with you, of the following brands, viz: Pedlar, 62 barrels; Rosebarrels; Bent Creek, 7 barrels; Fredonian, 10 barrels; Rocky Creek, 20 barrels; D. S. Garland, 13 barrels; Rockford, 5 barrels. Yr. mo. Wm. G. Pendleton. Richmond, 20th March, 1820:" That the Plaintiff rendered to the Defendant a bill for the same, amounting to 416 dollars 50 cents, passed his receipt for the amount thereof, and received from the Defendant a check on the Bank of Virginia, for the said sum of 416 dollars 50 cents, being the stipulated price for the said one hundred and nineteen barrels of fine flour: that it is the usage of the Banks in the said city, well known to all the merchants and dealers with the said Banks, in said city, and elsewhere, not to pay any check after three o'clock in the evening: that this last bargain was closed between two and four o'clock in the evening of that day, though there was a variance in the evidence on that point; one witness stating that to be the time, according to his belief, and another that he thought it was between three and five: that at the time of the said sale, the said Plaintiff had also in store in the said warehouse, about three hundred barrels of superfine flour, and that there was also stored therein, belonging to other persons, a number of other barrels of flour, (between two and three thousand,) of different brands, and of different qualities, though there was no flour there other than the Plaintiff's, of the same mill brands with the said one hundred and nineteen: that at the time the said order was given, there was a considerable fall of rain, and that the rain continued from thence till night: that in fact, as the store-keeper testified, the Plaintiff had at the time of the sale aforesaid, one hundred and twenty-three barrels of fine flour, of the brands specified, stored as above mentioned, viz: two more of Rose's, and two more of Pedlar's brand, than were specified in the said corrected list, and that with this exception, the fine flour of the Plaintiff on hand, and that sold by him, corresponded in respect to the brands on them, and the number of barrels of each brand: that although there is less difference in the market as to price, between the different mill brands of fine, than of superfine flour, yet there is a difference; but that between barrels of fine flour, of the same mill brand, there is no difference whatever: that the said one hundred and nineteen barrels had not, at the time of the said sale, nor at the time of the fire hereafter mentioned, been separated from the said one hundred and twenty-three barrels, nor from the larger parcels stored in the said warehouse: that on the morning of the 21st of March, 1820, before day-break, the said warehouse accidentally caught fire, and it, together with the said flour, was entirely consumed, and that the check aforesaid, for 416 dollars 50 cents, owned by said Plaintiff, and being in his counting room, which was a part of the same building, was consumed also: that the Defendant, about eight o'clock of the morning of the 21st of March, whilst the fire was yet raging, demanded of the said J. & J. Fisher, jr., a delivery of the said one hundred and nineteen barrels of flour, according to the order therefor, which he then produced, but the order was not complied with, it having become by the act of God, impossible: that the Defendant, on the same morning of the 21st of March, directed the Cashier of the said Bank of Virginia not to pay the said check for 416 dollars 50 cents.

" That it was, and is, the usage of the store-house-keepers in the city of Richmond, well known to the merchants thereof, (when the transaction aforesaid took place, and the said flour was stored,) to charge the vendor of the flour with the storage, and to deliver it to his order when called for: that it was not usual for the storekeepers to deliver flour during a rain, nor in the evening after dark, and that the practice was well known to the merchants: But the warehouse-keeper said, in giving his evidence that if the flour had been called for, on that evening, he would have delivered it, notwithstanding the rain, and that he thought it could have been delivered in an hour: that the storage due on said flour, had not, at the time of said fire, been paid: but the warehouse-keeper said, in his evidence, that he would have delivered any flour of the Plaintiff's to his order, on demand, notwithstanding the storage had not been paid, holding him responsible for it, and charging him with it: That it sometimes happens, that the flour, when about to be delivered out, requires coopering, in which case, according to usage in said city, well known to the merchants thereof, the coopering is done by the storer, at the expense of the vendor; that sometimes out of a hundred barrels, no cooperage is required; sometimes forty out of a hundred barrels require it, and that the average expense of cooperage is two cents a barrel, or $ 2 for every hundred barrels.

" That it was, and...