Vickery v. Evans

16 Ind. 331, 1861 Ind. LEXIS 165

• Court: Indiana Supreme Court
• Decided: June 8, 1861
• Status: Published

Opinion

Perkins, J.

Suit before a justice, upon the following account:

“August) 3,1858.

“'Lemuel Evans, To Jenkins Vickery, Dr.

To 25 bushels of corn at 75 cts. per bushel, - - $18.75”

Answer as follows:

“Jenkins Vickery, To Lemuel Evans, Dr.

January) 1858. To pasturing 3 horses 2 months, - $ 1.00

March 10. To pasturing 95 cattle 22 days, - - 32.50

To order on YicJcery) and accepted, from B. B. Moffit to Martin Merry) and assigned to Evans, (which is set out by copy)......5.00

$11.50”

On the trial in the Common Pleas, to which the cause was appealed, there was proof of the getting of the corn by the defendant, and of the value of it at the time it was got, but there was no proof of any special contract in relation to it. The plaintiff thus necessarily rested his case upon a contract of sale, and not upon a conversion of the corn, as he did not show any tortious taking or consumption of the corn, nor prove any demand for its return.

He offered, before the close of the trial, to prove the price of corn at the time of the commencement of the suit, a year after the corn was sold, and the Court refused the evidence.

As the case stood, this was not erroneous. As the plaintiff relied upon a sale of the corn at its delivery, the price at that date was all he was entitled to recover.

J. P. Usher, for the appellant. 8. Coulson, for the appellee.

Per Curiam.

The judgment is affirmed, with costs.