Whitecotton v. Simpson

27 Ky. 11, 4 J.J. Marsh. 11, 1830 Ky. LEXIS 173

• Court: Court of Appeals of Kentucky
• Decided: May 1, 1830
• Status: Published

Opinion

Chief Justice Robertson,

delivered the opinion of the'court.

This is a writ of error, to reverse a de-oree, rendered in favor of Simpson against Whitecot-ton, for $12 50 cents, on a bill filed by Simpson for discovery and relief.

If the bill claim anam’t within jurisdiction of chancellor, the amount decreed will not afi'ect his jurisdiction.

The bill alleges, that Simpson sold to Whitecotton, a horse, for which the latter paid him one hundred dollars in hand, and agreed to pay him, in addition thereto, one half of whatever he might be able to sell the horse for, exceeding $100, That Whitecotton sold the horse for $150 or more, and refused to comply with his contract; and that Simpson could not prove the contract, unless he could do so, by extorting a discovery from Whitecotton.

The answer admitted the purchase of the horse, but did not admit a contract precisely such as the bill set forth. The answer states, that it was' supposed that the fattening of the horse would cost $25; it was agreed, that if Whitecotton could sell him immediately after he should lie made fat, he would pay to ¡Simpson, one half of whatever the price should exceed $125; that he was unable to sell him until the fall succeeding the contract, when he sold him for $150.

One deposition was taken, but it will not be necessary to consider its effect, as the case must be decided on the bill and answer.

The answer- admits a contract, whereby Simpson wouldbe entitled to $12 50cents, unless Whitecotton had shown that he had fattened the horse and sold him as soon as a faithful and vigilant man, could have done so, conveniently; and that he could not sell him within a reasonable time, and thereby sustained a loss, which would entitle him to exemption.

He has not stated when the horse was fattened, nor that he did not sell him immediately after he was made fat. Besides, “immediately,” does not mean, as used in the answer, instantly. It means within a reasonable time. Indeed it is manifest, that in this case, time is not essential. The spirit of the contract, as admitted is, that if Whitecotton should sell the horse for more thai? $135, he would pay to Simpson one half of the excess.

The amount claimed by Simpson gave jurisdiction. The amount decreed does not affect the jurisdiction.

The court having obtained the cognizance of the cas$ for discovery, hud a right to decree relief. '

Breck, for plaintiff; Turner, for defendant.

We approve the decree. It accords with the apparent justice of the case, and viola! es no principie of equity.

Decree affirmed. *