Turpin, Jacob & Wright v. Polk — 1 Del. 323

Majority

p. 323

TURPIN, JACOB AND CHARLES WRIGHT vs. WILLIAM N. POLK, adm’r. d. b. n. of WILLIAM RICHARDS, decceased.

Headnote

A statement in writing made by a person, though hot on oath, admitted to contradict his deposition.

Case. Pleas; non assumpsit; payment and discount, and act limitations.

This was an action for goods sold and delivered, money paid for the use of deft., and for the non-performance of a contract for the delivery of a quantity of bark. The declaration contained six counts; the first three on the following contract: “5 May, 1831. Received of T. J. & C. Wright $1, in part payment of fifty cords of Spanish bark at $9 25 per cord,' $80, to be paid in goods, and the balance in money on delivery.” The fourth count was a special one for money paid the Farmers’ Bank by plffs. for the use of deft.; and the ■other two were general for goods sold and money paid, &c.

Tbe plffs. were drawers of a promissory note for $350, dated 10 May, 1831, in favor of Richards, which was endorsed by him and negotiated at the Farmers’ Bank, and the money paid to him. This note was paid on 20 September, 1831, by the drawers.

The plffs. offered in evidence an acknowledgment under seal, by Richards, that the note was discounted for his use and promising to pay the discount. It was objected to; because, being under seal, it changed the character of the transaction and of the remedy. The court admitted it saying that no action could be framed upon it except for the discount.

Plffs. also gave in evidence a receipt dated May 21, 1831, for $371, and signed by Richards, on account of bark contract. They claimed, therefore, damages for the non-performance of the contract ■to deliver the bark; repayment of this sum of $371, paid in advance •on account of the bark; and also the $350, the amount of the note discounted by the bank for deft’s, use, and paid by plffs. at maturity. The defts. contended that the receipt and note referred to each other

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and were all one transaction; that the $371, included a repayment of the note discounted in bank. This was the principal matter in dispute, and it was very much contested before the jury. On tke subject of damages for the non-delivery of the bark, plffs. offered the deposition of Samuel Neall a commission merchant in Philadelphia, to prove the price of bark there at the time stated. It was objected to and admitted. The jury can estimate the valúe of the article at Seaford from the price at Philadelphia or other usual market. The measure of damages for non-delivery of goods is the difference between the contract price and the price at the time in the market.

Cullen and Frame for plaintiffs.

Rodney and Robinson for defendant.

The deft, offered in evidence a statement made by Samuel Neall, of bark sold by him in September, 1831. It was signed by him and his signature proved. Objected to, as not being upon oath; but the court admitted it on the gronnd that the previous declarations of a witness are always admitted to contradict his testimony.

The plffs. had a verdict and judgment for damages, $887 21.