Colman v. Price

1 Blackf. 303, 1824 Ind. LEXIS 10

Opinion

Scott, J.

The plaintiff below declared in a general count in assumpsit for hats sold and delivered. The evidence adduced proved a special bailment to the defendant as an agent.

The contract proved is essentially different from that which is set out in the declaration; the judgment must be reversed

(1).

Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.

Where goods are consigned lo a factor for sale on commission, a contract is presumed that he will account for such as are sold, pay over the proceeds, and re-deliver those remaining unsold, on demand. The declaration against him avers a demand of an account; and, to support the action, the demand must be proved or presumed. Topham v. Braddick, 1 Taunt. 571.

The following is a form of the declaration, in such a case, in special assumpsit: — Knox county, to wit. A. B. complains of C. D. in custody, &c. of a plea of trespass on the case, on promises, &c. For that whereas on, &c. at, &c. in, &c. in consideration that the said A. B. at the special instance and request of the said C. D. had delivered and caused to be delivered to the said C. D. divers large quantities of timber, to wit, five hundred cart-loads of timber of and belonging to the said A. B., of a large value, to wit, of the value of two hundred dollars of lawful money of the United Stales, to be sold and disposed of by the said C. D. for the said A, B., for a certain reasonable reward or commission to be therefore paid by the said A. B. to the said C. D., he the said C. D. undertook, and then and there faithfully promised the said A. B. to sell and dispose of the said timber for the said A. B., and to render a reasonable account thereof to the said A. B., whenever he the said C. D. should be thereunto afterwards requested: And the said A. B. avers, that the said C. D. afterwards, to wit, on, &c. at, &c. did dispose of and sell the said timber for a large sum of money, to wit, the sum of two hundred dollars of like lawful money, and then and there received the said money for the same: Yet the said G. D., not regarding, &c. but contriving, &c. hath not yet rendered the said A. B. any reasonable account of the said timber, or any part thereof, although so tp do he the said C. D. by the said A. B. afterwards, to wit* on, &c. and often since, at, &c. was requested; but he so to do hath hitherto wholly refused, and still doth refuse, contrary to the form and effect of the said promise and undertaking so made by the said C. D. as aforesaid. To the damage of the said A. B. of three hundred dollars, and therefore he brings his suit, &c. 2 Went. 486. Vide forms, also, in 2 Chitt. Pl. 161,162; 3 ib. 201.