Green v. McIntire , 2 Ind. App. 278 ( 1891 )

Black, J.

We are required to determine whether the complaint of the appellees against the appellant was sufficient on motion in arrest of judgment.

It was in two paragraphs, and if either was sufficient after verdict, there was no error in overruling the motion. It is said by the appellant that the second paragraph was the one relied on by the appellees, and the one held sufficient by the court.

This paragraph showed, in substance, that the appellees were merchants in New York city, engaged in buying and selling grain, and the appellant was engaged in the same kind of business; that in July and August, 1889, the appellant sold to the appellees twenty thousand bushels of wheat at certain prices stated per bushel; that by agreement of the parties the wheat was to be of what is called grade No. 2 red wheat, and was to be shipped over certain railroads, free on board, and subject to New York weights and measures and inspections made by a public officer appointed for that purpose, and if upon arrival of the grain “ it should not grade as No. 2 wheat by said public inspector, then to be sold by plaintiffs at market difference on day received, and accounted for accordingly to defendant; ” that in pursuance of said agreement appellant shipped to appellees wheat at different times during said period, amounting to twenty thousand bushels, and drew upon the appellees by draft attached to bill of lading, at divers times, for $14,891, which drafts were paid by appellees, and the money was received by the appellant; that when said wheat was received by the appellees and duly inspected by said public officer, it did not grade as No. 2 red wheat, but was damp and injured, and was graded by said public inspector at a much lower and inferior grade ; “ that plaintiffs thereupon received it as of the grade so rated, and accounted for it to the defendant for the highest market price on the day of delivery to them, as was agreed by plaintiffs and defendant.”

It is alleged “ that a copy of the bill showing amount paid to the defendant, the amount received from sale of said wheat, as well as the balance owing plaintiffs by defendant, is filed herewith and made a part hereof, marked ‘ Exhibit A.’ ”

It is further alleged that the appellees “ have fully accounted to defendant for all wheat received by them by defendant, as agreed upon, but that defendant has overdrawn the amount owing him by plaintiffs in the sum of eight hundred and forty-two dollars and forty-seven cents, and said amount has been paid by plaintiffs to defendant before said wheat was received, upon the representation of defendant that said wheat was of the grade purchased, to wit, red wheat, whereas said wheat was graded of a lower quality by those authorized to make said inspection and pass judgment thereon; that said defendant has been informed of said matters, and requested to pay the amount of said difference to plaintiffs, but has wholly failed and refused to do so; wherefore,” etc.

Filed Sept. 17, 1891.

A bill of particulars, in the form of an account, showing debts and credits, and a balance of $842.47, is filed, which, with the averments of the complaint, is sufficiently intelligible.

The appellant objects to this paragraph, on the ground that it appears therefrom that, whereas, by the contract, stated, if the wheat should be of lower grade than was contracted for, it should be sold by the appellees, they, instead of selling it, kept it themselves.

The complaint shows that “ said wheat,” that is, the twenty thousand bushels of wheat, did not grade according to the contract.

In such case it was to be sold by the appellees, at the market difference on the day it was received, and was to be accounted for accordingly.

It is alleged that the appellees received it as of the grade rated by the inspector, and accounted for it to the appellant for the highest market price on the day of delivery to them ; and the bill filed as an exhibit shows the amount paid to the defendant, “ the amount realized from sale of said wheat,” and the balance owing. The credits shown in the bill of particulars are thus indicated to be for wheat sold. It appears that the wheat was sold and was accounted for at the market price of the day on which it was received.

This is not a satisfactory mode of pleading, and it is not to be commended; but we are of the opinion that after verdict the complaint was not open to the objection urged against it. by the appellant.

The judgment is affirmed.