Sund v. Grant's Admr.

Court of Appeals of Kentucky

Sund v. Grant's Admr.

2 Ky. Op. 60, 1868 Ky. LEXIS 298

DecidedJanuary 4, 1868

StatusPublished

This text of 2 Ky. Op. 60 (Sund v. Grant's Admr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sund v. Grant's Admr., 2 Ky. Op. 60, 1868 Ky. LEXIS 298 (Ky. Ct. App. 1868).

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Opinion

Opinion oe ti-ie Court by

Judge Hardin :

The contract between A. Grant and the appellant does not, in our opinion, import a delivery of the one thousand cords of wood, or more than an’ agreement of the parties, whereby Grant undertook to furnish that quantity of wood, cut and stacked on the lands designated, which the appellant agreed to purchase at the price of $2.50 per cord. To entitle the plaintiff to recover on the contract for the agreed price of the wood, it was therefore necessary, upon well settled principles, that by an actual delivery of the wood, or acts equivalent thereto, as measuring, setting apart or designating the 1,000 cords of wood, the title should have passed to the appellant. This is not shown to have been done by either’allegation or proof. As the court, in effect, instructed the jury that the plaintiff under the contract might recover the price of the wood without [61]*61showing such actual or constructive delivery, this ruling is deemed erroneous and fatal to the judgment.

Beck & Thornton, for appellant. Bronaugh, for appellee.

We perceive no error in the ruling of the court prejudicial to the appellant, with respect to the alleged parol agreement of Grant to make a road for use in hauling the wood. But for the reason stated, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with this opinion.

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Opinion oe ti-ie Court by

Judge Hardin :

The contract between A. Grant and the appellant does not, in our opinion, import a delivery of the one thousand cords of wood, or more than an’ agreement of the parties, whereby Grant undertook to furnish that quantity of wood, cut and stacked on the lands designated, which the appellant agreed to purchase at the price of $2.50 per cord. To entitle the plaintiff to recover on the contract for the agreed price of the wood, it was therefore necessary, upon well settled principles, that by an actual delivery of the wood, or acts equivalent thereto, as measuring, setting apart or designating the 1,000 cords of wood, the title should have passed to the appellant. This is not shown to have been done by either’allegation or proof. As the court, in effect, instructed the jury that the plaintiff under the contract might recover the price of the wood without [61]*61showing such actual or constructive delivery, this ruling is deemed erroneous and fatal to the judgment.

Beck & Thornton, for appellant. Bronaugh, for appellee.

We perceive no error in the ruling of the court prejudicial to the appellant, with respect to the alleged parol agreement of Grant to make a road for use in hauling the wood. But for the reason stated, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings not inconsistent with this opinion.

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Bluebook (online)

2 Ky. Op. 60, 1868 Ky. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sund-v-grants-admr-kyctapp-1868.