Hill v. Wallace

1 Add. 145

• Court: Pennsylvania Court of Common Pleas, Washington County
• Decided: September 15, 1793
• Status: Published

Opinion

President.

We do not think ourselves at liberty to direct a nonsuit; for we cannot say, that it is impossible for the jury to presume a sale.

There are two questions :—

1. On the merits, whether the wheat was delivered.

2. On the form of the action, whether the evidence supports it.

1. The first question we leave to your determination.

2. On the second, it has been contended, that no action will lie, but trover. There is no foundation for this opinion. Were this true, and the wheat were lost or stolen, from the grossest negligence its owner would have no remedy; for, in such case, there would be no conversion, and, without conversion, trover could not be supported. It is clear, that assumsit will lie.

But the true dispute in this case has not been touched on. The real dispute is not whether trover or assumsit lies ; but whether this ought to be a special assumsit instead of a general indebitatus assumsit, as it is.

If from the circumstances of this case, and the course of this trade in this country, you can presume a sale, this action will lie.

The jury found for the plaintiff 2l. 5s. 6d. damages.