Jester v. Murphy , 2 Del. Ch. 171 ( 1858 )

Harrington, Chancellor.

The interlocutory decree to account, in this case, settles the character of the bond for $700.00, upon which judgment was obtained in Pennsylvania, and afterward in an action of debt in this State. It was not an absolute bond, but was subject to a defeazance, being given on sale by Jester to Murphy of a china store, in April, 1833 ; and the $700.00 were to be forfeited if Jester should not take back the store in a year thereafter, or pay any loss that Murphy might sustain on a resale of the goods.

The interlocutory decree forbids me also to decide that this forfeiture of $700.00 became absolute on a re-sale of the goods and non-payment of the loss, even after Jester had submitted to and encouraged proceedings on the judgmentas an absolute judgment; but this decree assumes that the real loss, and not the agreed forfeiture, is the equitable compensation to which the defendant is entitled. And, for the purpose of ascertaining this loss, it required the defendant to file an account of the said goods, at their cost value; also an inventory thereof and the specific amount for which they were sold. The defendant filed a statement, in effect,that as no invoice had been made at the purchase and his books had been destroyed, he could not, after more than twenty years, state these particulars; but he set forth the fact that an inventory and appraisement, amounting to $1021.21, had been made at the time of the sale (which is exhibited) and also the amount of these sales, viz : $684.10, which is $337.11 less than the inventory, showing a loss to that amount, without adding costs. But, it is urged by the complainant that there is not sufficient proof of the value of these goods when bought; that there may have been intervening sales of a portion of them, and probably were, as the defendant occupied the store and was authorized to sell, and especially as the valuation, made at cost prices when they were finally sold at auction, was less than the sum at which they were originally valued by the parties themselves. I think this is reasonable, and that the difference between the purchase money and the amount of the public sale, viz.: $378.79, may fairly be taken to represent the value of the goods which had been sold at private sale, which being added to the amount produced at the public sale, $684.10, would make the total amount realized by the defendant to be $1062.89, from which deducting the cost of sale, $62, there remains $1000.89. This sum being deducted from the $1400.00 at which they were valued by the parties when Murphy purchased, will give $399.11 as the real loss sustained by him, and which the complainant agreed to compensate.

I do not take into consideration anything additional, for house rent, clerk hire &c., but only the cost of disposing of the goods'; since no such stipulation beyond this is made in the instrument of defeazance, which, according to the interlocutory decree, covers merely theloss sustained on a re-sale of the china store; but Murphy is entitled to interest on the $399.11 from the time of the sale, 19th April, 1834, say for twenty four years and six months to 11th October, 1858, which is $586.68, making in all $985.79 due on this day. For this sum let a decree be entered— the judgment to stand for that amount and costs, and also the costs of this suit.

Decree affirmed by the Court of Errors and Appeals, at the June Term 1859. Appeal not reported.