Martin v. Jayne , 1868 Ky. LEXIS 545 ( 1868 )

Opinion of the Court by

Judge Eobertson:

The letters addressed by the appellees to Blanton and T.oon after the destruction of the drugs by fire, sufficiently show that they had been consigned to the appellant to sell for the appellees on commission, and also that the drugs remaining unsold were transferred to Blanton and Toon to sell on commission with the consent of the appellees.

So far therefore as the drugs first consigned to the appellant were unsold he is not responsible. How much of them had been sold by the appellant does not appear. But their said letters show that the appellees considered the appellant indebted to them for drugs sold by him. That matter, however, was not so litigated as to authorize a judgment on it either way, but may, by amended pleadings and otherwise, be investigated on the return of the case to the circuit court for retrial.

The result of the foregoing view is that on the facts as now exhibited, the circuit court erred in refusing to give the instruction asked for by the appellant, construing that instruction, as we are inclined to do, to include the drugs sued for, but on another trial it might be prudently made more explicit.

Wherefore the judgment is reversed and the cause remanded for a new trial.