Soper v. Jones

Decision Date29 June 1881
PartiesSAMUEL J. SOPER, and others, trading as SAMUEL J. SOPER & SON v. RICHARD I. C. JONES, JR., trading as R.I. C. JONES, JR. & Co.
CourtMaryland Court of Appeals

APPEAL from the Circuit Court for Howard County, on removal from the Baltimore City Court.

This action was brought by the appellee against the appellants and the narr. alleged as follows:

First.--For that the defendants, who are associated together as co-partners in carrying on and conducting the business of auctioneers in the City of Baltimore, heretofore to wit: on or about the eighteenth day of November, 1878 contracted with the plaintiff to sell for the plaintiff a certain large lot of goods and merchandise, of great value to the plaintiff, for a price then expressed and agreed upon, to wit: for the price of six hundred and fifty-seven dollars and fifty cents, or for an advance upon that price, but not to sell the said lot of goods and merchandise for a less price than the sum agreed upon, to wit: the price of six hundred and fifty-seven dollars and fifty cents, and the said plaintiff, in fact, says, that confiding in the said promise and agreement of the defendants, the plaintiff delivered the said lot of goods and merchandise to the defendants, and the defendants sold the said lot of goods and merchandise for a less price than the sum agreed upon.

Second.--And for that the defendants, who are associated together in conducting and carrying on business as stated in the first count, heretofore, to wit: on or about the eighteenth day of November, 1878, contracted with the plaintiff to sell for the plaintiff a certain other large lot of goods and merchandise of great value to the plaintiff, for a certain other price then expressed and agreed upon, to wit: for the price of six hundred and fifty-seven dollars and fifty cents, or for an advance upon that price, and if the said lot of goods and merchandise could not be sold by defendants, at public auction, for the said price agreed upon, to wit: the price of six hundred and fifty-seven dollars and fifty cents, the defendants would return the said lot of goods and merchandise to the plaintiffs, or pay him for them the price of six hundred and fifty-seven dollars and fifty cents, and that confiding in said promise and agreement of the defendants, the plaintiff delivered to them the said lot of goods and merchandise. And the plaintiff in fact says, that the defendants did not return the said lot of goods and merchandise, or any part thereof, to the plaintiff, but sold the same for a less price than the sum agreed upon, and that the defendants, though thereunto often requested, have refused, and still do refuse, to pay to the plaintiff the price of said lot of goods and merchandise agreed to be paid, to wit: six hundred and fifty-seven dollars and fifty cents.

Third.--And for that the defendants heretofore, to wit: on or about the eighteenth day of November, 1878, bought of the plaintiff a certain other large lot of goods and merchandise for the price of six hundred and fifty-seven dollars and fifty cents, to be paid by the defendants to the plaintiff, when thereunto requested, and that confiding in said promise and agreement of the defendants, the plaintiff delivered to the defendants the said large lot of goods and merchandise. And the plaintiff in fact, says, that though thereunto often requested, the defendants have refused, and still do refuse, to pay to the plaintiff the said price of the goods agreed to be paid as aforesaid.

Fourth.--And for that the plaintiff, on or about the eighteenth day of November, 1878, contracted with the defendants to deliver to the defendants a certain other large lot of goods and merchandise which the defendants agreed to sell for the plaintiff, at a price not less than the price then agreed upon, to wit: the price of six hundred and fifty-seven dollars and fifty cents, and failing to sell said lot of goods and merchandise at the price agreed upon as aforesaid, the defendants agreed to return said lot of goods and merchandise to the plaintiff in a reasonable time, and that confiding in said agreement and promise of the defendants, the plaintiff did deliver the said lot of goods and merchandise to the defendants. And the said plaintiff in fact says: that although a reasonable time for the said defendants to sell, or return the said lot of goods and merchandise to the plaintiff as aforesaid, has long since elapsed, yet the said defendants not regarding their agreement as aforesaid, and contriving to injure and inflict a loss upon the plaintiff, have not, although often requested so to do, paid the said plaintiff the price for which the said goods and merchandise were contracted to be sold, or re-delivered the same or any part thereof to the said plaintiff, but have hitherto wholly refused, and still do refuse.

The jury rendered a verdict for the plaintiff. The defendants made a motion in arrest of judgment, which motion the Court overruled. Judgment was thereupon entered for the plaintiff. A bill of exceptions taken by the defendants is not inserted, as it was not considered by this Court. The defendants appealed.

The cause was argued before BARTOL, C.J., ALVEY, IRVING and MAGRUDER, J.

Sebastian Brown, for the appellants.

Henry E. Wootton, for the appellee.

IRVING J., delivered the opinion of the Court.

The question intended to be presented by the bill of exceptions contained in the record of this cause, cannot be considered, because the bill of exceptions was not signed until after the term at which trial was had, was fully ended, and another term of the Circuit Court for Howard County, where it was tried, had intervened. The...

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  • Ingold v. Phoenix Assur. Co.
    • United States
    • North Carolina Supreme Court
    • March 23, 1949
    ... ... 294, 79 S.E. 602; Debnam v. Watkins, 178 ... N.C. 238, 100 S.E. 336. 'A plea of tender not accompanied ... by profert in curia, is bad. Soper v. Jones, 56 Md ... 503. ' Parker v. Beasley, supra [116 N.C. 1, 21 ... S.E. 957]; DeBruhl v. Hood, supra ...           The ... ...
  • Dr. Shoop Family Medicine Co. v. Davenport
    • United States
    • North Carolina Supreme Court
    • October 15, 1913
    ...prist) but must be accompanied by a profert in curiam of the money tendered"--citing, also, Bank v. Davidson, 70 N.C. 122. In Soper v. Jones, 56 Md. 503, it was held that "a plea of tender, not accompanied by profert in curiam, is bad." The same was said in De Bruhl v. Hood, 156 N.C. 52, 72......
  • National Liberty Ins. Co. of America v. Thrall
    • United States
    • Maryland Court of Appeals
    • July 20, 1942
    ... ... Poe's Pleading (Tiffany) sec. 670; Tyson v. Rickard, ... 3 Har. & J. 109, 115, 5 Am. Dec. 424; Soper v ... Jones, 56 Md. 503, 510. What the defendant pleaded ... applies to Thrall as he was left out of the first amended ... declaration, and did ... ...
  • Forwood v. Magness
    • United States
    • Maryland Court of Appeals
    • March 15, 1923
    ... ... Middle States Co. v. Mattress Co., 82 Md. p. 515, 33 ... A. 886; 1 Poe's P. & P. (3d Ed.) § 611; Karthaus v ... Owings, 6 Har. & J. 134; Soper v. Jones, 56 Md ... 503; Bonaparte v. Thayer, 95 Md. 548, 52 A. 496; ... N. & W. R. Co. v. Langdon, 118 Md. 268, 84 A. 473 ... ...
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