Ball ex rel. McCallister v. Eastburn

8 Del. 401

• Court: Superior Court of Delaware
• Decided: July 1, 1867
• Status: Published

Opinion

By the Court.

Heither of the reasons urged is sufficient for a nonsuit in this case. In the first place, the action is upon an original contract between the immediate and only parties to it, and not upon a collateral agreement to answer for the debt, default or miscarriage of another; and in the next place, with the evidence we have before us, it would be a question of fact which the jury would have to determine from the proof, whether the defendant was, or was not, the sole purchaser and owner of the horse, if there was no other answer to be made to the objection that the brother was not joined as a co-defendant in the action.

The case afterward went to the jury without any charge from the court, and the plaintiff had a verdict.