Richards v. Samuel Shaw.
| Decision Date | 31 January 1873 |
| Parties | SANDFORD RICHARDS et al.v.SAMUEL SHAW. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Champaign county; the Hon. JAMES STEELE, Judge, presiding.
This was an action of assumpsit, by Samuel Shaw against Sandford and Seldon Richards, to recover the price of corn sold and delivered. The facts appear in the opinion.
Messrs. SWEET & LOTHROP, for the appellants.
Mr. JAMES S. JONES, for the appellee.
This was an action of assumpsit, to recover for 391 bushels of corn sold and delivered. The declaration contained a special count on a contract for the sale of the corn, and also the common counts. The plaintiff below, Shaw, recovered a verdict and judgment for $115.
The testimony in the case showed a contract, on the part of Shaw, made in March, 1867, to sell to Sandford and Seldon Richards 500 bushels of corn at the price of 50 cents per bushel. Shaw delivered only 391 20/100 bushels of the corn, about 30 bushels of it the last of April, 1867, and the rest in June, 1867. The price of corn on the 5th of May, 1867, which the Richards claim to be the time of delivery, was 75 to 80 cents per bushel; and in June, 1867, at the time Shaw delivered all but the 30 bushels, it was 45 to 48 cents per bushel.
There seems to be no material contradiction in the testimony, except upon one point, the time of delivery under the contract. Shaw testified that the time of delivery was not fixed by the contract, although he admits that about the first of May was understood to be the time for the delivery of the corn, but that he would not make a positive agreement for the delivery at that time. Sandford and Seldon Richards both testified positively that, by the contract, the corn was to be delivered by the 5th day of May, 1867, and Orin Richards testified that it was to be delivered the first of May.
The clear weight of the testimony is, that the time of delivery was fixed by the contract to be by the 5th of May, 1867.
The appellants make two points for reversal of the judgment: First, that the plaintiff below could not recover without showing the completion of the contract under which the corn was delivered. Second, that the verdict is against the evidence.
There was a manifest failure on the part of Shaw to complete his contract, yet we are inclined to hold that he was entitled to his action, as upon an implied contract, for the portion of the corn he did deliver.
It is a rule, supported by a very respectable weight of modern authority, that, if the...
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