Franks v. Ross ( 1919 )

The opinion of the Court was delivered by

Mr. Justice Gage.

A merchant sued a landlord in a magistrate’s Court for fertilizer supplied by the merchant to a tenant of the landlord on the written order of the landlord.

Let the order be reported.

The verdict in the magistrate’s Court was for the full sum sued for, and the Circuit Court affirmed the judgment.

We are of the opinion that, at most, the merchant was' entitled to recover only the acid which the merchant supplied, estimated to' be worth $28.50. The appellant’s counsel squints at so much in the brief.

It is true that the order was only for acid phosphate, with the suggestion in the order that the tenant might mix the acid with his own meal, and thus make his own mixture.

The tenant had no meal, and the merchant supplied, in good faith, a commercial mixture, one ingredient of which he alleges was the desired acid.

The landlord got the acid mixed, it is true, and the merchant alleges the tenant got also the other ingredients (meal) or its equivalent.

The landlord now pleads non hcec in fozdera veni. It is true the landlord has the right to stand on his contract and on the letter of it; but the letter includes acid which the land lord got; and we are minded, under the circumstances of the case, to so read the contract that, while the landlord gets his pound of flesh, he may yet draw “no jot of blood.”

The judgment of the Circuit Court is modified, with directions to allow judgment for $28.50, the estimated value of the acid.

Mr. Chief Justice Gary and Messrs. Justices Hydrick and Fraser concur. Mr. Justice Watts did not sit.