English v. Finicey

5 Blackf. 298, 1840 Ind. LEXIS 26

• Court: Indiana Supreme Court
• Decided: May 29, 1840
• Status: Published

Opinion

Blackford, J.

This was an action of debt, brought against English and another, on a bond for the payment of 380 dollars. "

It appeared, on oyer, that the bond was a delivery-bond. It was conditioned for the delivery of certain goods, at the time and place of sale, to a constable who had levied two executions on them.

Pleas, 1. The defendants did deliver the property on the day, at the place, and to the constable, in the said condition mentioned, according to the tenor and effect of the condition. 2. The defendants have always been and still are ready and willing to deliver the property according to the condition of the bond. 3. The property was never demanded of the defendants, nor was any person ready or willing to receive the same at the time it was to be delivered, or at any time since. 4. As to 280 dollars, actio non, because the goods were not worth more than 100 dollars.

J. Pettit, for the plaintiffs. A. S. White, R. A. Lockwood, and D. Mace, for the defendant.

General demurrers-to the second and third pleas, and the demurrers sustained.

To the first and fourth pleas, replications in denial were filed, and issues joined. The cause was submitted to the Court; the issues found for the plaintiff; and damages assessed at 226 dollars and 20 cents, that being the amount of the executions with interest and ten per cent, damages. Final judgment for the penalty; and execution awarded for the damages assessed and costs.

The second plea is bad. The fact of the defendant’s being ready and willing to deliver the property is not material. The plea admits the contract, but does not show a performance or discharge. Gould, 357. The third plea is also bad, for omitting to aver that the defendant had the goods at the time and place ready to be delivered, &c. Johnson et al. v. Baird, 3 Blackf. 153, 182.

The issues on the first and fourth pleas are sufficiently certain. The first plea avers a delivery according to the condition, and states when and where and to whom the delivery was made. Replication in denial. The issue could not be more specific. 1 Chitt. PI. 616, 617. Piad a breach been assigned specially in the replication, and there had been a rejoinder in denial, the issue would have been the same. The fourth plea admits the non-performance of the condition, and relies on matter of excuse. In such cases, the replication need not assign a breach. Meredith v. Alleyn, 1 Salk. 138.—1 Chitt. Pl. 615.

Per Curiam.

The judgment is affirmed with costs.