Hollis v. Morris

2 Del. 3

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

The Court

said that many of the authorities as to the second point distinguish between contracts executed and executory, and regard a contract executed on one side as out of the statute. The lat'ei cases seem to conflict with the earlier-. We shall charge the juiy that if this contract has been executed by the receipt of the corn by defendant, the plaintiff may recover. And though the declaration should be for a crop of corn bargained and sold, if the proof establish that the defendant took the corn, sold it and received the proceeds» the plaintiff may recover oh the count for money had ahd received to his use; for, even without any contract, and if the defendant took it as a trespasser, the plaintiff might waive the trespass and recover in this form of action. On the first point there has been some proof of an actual sale of the horse and gig, which we shall leave to the jury-

Layton for plaintiff. Cullen and Frame for defendant.

The plaintiff then proved a sale of the corn to defendant for $195: and that he had gathered and sold it, and received the proceeds. The horse was worth $60: — value of the gig not proved.

Yerdict for plaintiff $138 25.