Barr v. Logan

5 Del. 52

• Court: Superior Court of Delaware
• Decided: May 5, 1848
• Status: Published

Opinion

Court.

The justice of the peace must have had jurisdiction to give this court appellate jurisdiction. The transcript filed is a part of the case here only so far as to show how the case came into this court; that is, that it was a case within the jurisdiction below, and within the appellate jurisdiction of this court. If the jurisdiction be shown, and there is any defect in the mode of bringing the suit up, as want of a certificate or seal to the record, this matter must be objected to at the earliest period, and before pleading over, or it will be considered as waived; but the party cannot waive objection to jurisdiction, or by consent give jurisdiction where there is none. This court must have jurisdiction on appeal, or it cannot try this cause, though it may have original jurisdiction of like causes of action. (4 Harr. Rep. 94, Townsend vs. Stewart; Ibid 96, Jackson vs. Hedges.)

The question is then, whether a justice of the peace has jurisdiction of this cause of action, which is assumpsit for not accepting goods sold. It is admitted that such a cause of action is within the jurisdiction; but it is argued that as the action here is not for the price of the goods, but for damages arising from a a re-sale of them, this is not within the jurisdiction. Some of the earlier cases favor this idea; that the re-sale rescinds the contract, and the action cannot be upon it; but it is now settled that the purchaser is not bound to keep the goods in order to maintain his action for not accepting them; but may re-sell them, and then the difference in price is the damage. This is especially so in case of a sale by auction, where the custom, as proved in this case, is to re-sell the goods on account of the purchaser. On a purchase at auction, therefore, there is a contract by the purchaser to accept and pay for the goods, or if he does not do so, to pay the difference on a re-sale; and this is a contract which is within the act of assembly giving jurisdiction to justices of the peace over causes of action arising from express or implied contract for the payment of money or delivery of goods, wares or merchandize. Nonsuit refused.

The defendant then proved that he had demanded the goods of Barr, and offered payment. Barr refused and referred him to Naff. Logan told him if he would go down to the bank he would give him a check for the money.

The case was argued before the jury, on the facts; and the court charged on the law:—

Booth, Chief Justice.

After a contract has been made for the sale of goods, the vendor is entitled to retain the possession of them until the purchaser pays the price, unless it is agreed that a certain time shall be given for the payment. If it is part of the contract that a certain time shall be given for the payment, and that the goods shall then be delivered, the vendor is bound to be ready to deliver the goods at that time when called on for that purpose by the purchaser; and must make an actual delivery, upon the purchaser tendering or paying the price.

Patterson, for plaintiff. Bradford, for defendant.

If at the time appointed for the payment and delivery, the purchaser demands the goods, and the vendor has them not ready for delivery, or refuses or neglects to deliver them, the purchaser may rescind the contract and recover back any deposit he may have previously made; or he may affirm the contract and bring an action against the vendor for the damages which may have been sustained by the purchaser.

On the other hand, if the vendor is ready to deliver the goods at the time and place appointed, and the purchaser neglects or refuses to call for them, or neglects or refuses to take them, or to tender or pay the price, the vendor may bring an action against the purchaser for a violation of his contract. In such case the vendor may retain the goods, and recover as damages the difference between the contract price and the market price of the goods on the day the contract was broken. Or the vendor may re-sell the whole of the goods; in which case the difference between the contract price and the price of the second sale, is the fair measure of damages. If he sells but part of the goods, and retains the residue, he can only recover the difference between the' contract price of such part of the goods as are sold, and the price which they brought at the second sale.

The plaintiff had a verdict.