Puterbaugh v. Winchester

Walker, J.

The evidence in the record shows, it was a part of the agreement, when the sale was made, that appellee should get up the mules, which were then running at large. It was no part of the agreement, that appellant was to get them up, or deliver them to appellee. He seems to have sold the mules to appellee for less than their value, to avoid a delivery. Appellee took the risk of getting the mules, and if they were not found, it is his loss, and not that of appellant. When he failed to find the mule, he had no right to recover its value of appellant, who had made his contract that he was not to deliver it, nor can the law imply such an undertaking, against the express agreement of the parties.

If the evidence had shown, that Weed had taken the mule before appellant made the sale, it might be that appellee could recover the price paid for the animal. The evidence, however, fails to show when it was taken. If after the sale, then the loss was appellee’s; otherwise, it would be the appellant’s. If there was a right of recovery, it was not under the special counts of this declaration, as the evidence shows a different contract from that declared upon in these counts. In such a case, the recovery could be had under the count for money had and received, as a want of ownership of the property sold would have given the appellant no right to retain the price received, as if Weed had taken the property to Missouri and converted it before the sale ; as it would not have been in the situation that the parties supposed, at the time the sale was made. It would be otherwise, if appellee had agreed to run all risks, and take the property as it might be at the time, unless appellant concealed facts relating to its situation, from appellee.

The finding of the jury was against the instructions of the court, and the judgment must be reversed, and the cause remanded.

Judgment reversed.