Appleman v. Michael

Miller, J., delivered the opinion of the Court. The declaration in this case contains the common counts for goods sold and delivered, and two special counts to the effect, that one Fales being indebted to the plaintiffs in a certain sum of money, sold and delivered to them all his stock of dry-goods in his store in Hagerstown, which goods the plaintiffs took possession of and were about to remove to Baltimore, but before they were removed the plaintiffs at the request of the defendant sold and delivered to him, so many of said goods as Fales should say were saleable in the Hagerstown market, at. such price or valuation as should be agreed upon by said Fales as agent for the defendant and Henry J. Michael one of the plaintiffs, and it was agreed by and between the plaintiffs and defendant, that upon the completion of such valuation the defendant should execute his note for the amount so to be ascertained, payable in ninety days, with interest from the day of sale, and .upon executing this note 'and payment thereof, the plaintiffs agreed to execute a receipt in full for their debt against Fales, and also procure a release of a certain debt due from Fales to another party,.and”the plaintiffs aver that said Fales and Michael on the 21st of February, 1870, took an inventory of said saleable goods and assessed and valued them at the sum of $1173.35, and the same were left remaining in said store by order and direction of the defendant, and passed into his possession and control, that this inventory and appraisement was endorsed by Fales as correct, and was by the plaintiffs afterwards presented and shown to the defendant, and he was thereupon requested to execute his note for the said sum of $1173.35 payable at ninety days, with interest as aforesaid, but the defendant refused and still doth refuse to execute said, note and refused and still refuses to pay for said goods, although the plaintiffs with the knowledge of the defendant were ready to deliver the receipt and release aforesaid, and are still willing and ready to deliver the ²⁷⁹ same, and have offered so to do upon his executing said note and paying tlie same. The sale, inventory and appraisement of these goods were made on the 21st of .February, 1870, and this suit was instituted on the 3rd of April, 1873, more than three years after the sale, but less than three years from the maturity of the note, which it is alleged the defendant agreed to execute. Among others the plea of limitations was pleaded, and the principal question in the case is whether the Statute is a bar to this action, or, in other words, was there error in granting the plaintiffs’ first and second prayers to the effect that, the Statute is no bar if the jury find the facts alleged in the special counts of the declaration, and in rejecting the defendant’s fourth prayer that if the jury find the contract set out in the declaration, and that the defendant afterwards declined or refused to carry out his part of it, then the plaintiffs’ cause of action accrued at the time of such refusal and declining, and if the jury find that more than three years elapsed between that time and the bringing of this suit, then under the pleadings the plaintiffs cannot recover.

It is well settled and familiar law, that if goods be sold on credit no action for their Value lies until the credit has expired, and it would be superfluous to cite authorities in support of that proposition. So it has been further held that if goods be sold to be paid for by a bill at a certain time, indebitatus assumpsit for goods sold and delivered will not lie until after the expiration of the time which the bill has to run. Dutton vs. Solomonson, 3 Bos. & Pull., 582. Again where goods were sold to be paid for in three months after a certain day, by a bill at two months, it was held to be a sale on a credit of five months and that assumpsit for goods sold and delivered could not be brought at the end of three months upon tlie neglect of the vendee to give his bill at two months, and that the only remedy the vendor then had was a special action on the case for ²⁸⁰ damages for breach of the contract in not giving the bill.

Mussen vs. Price, 4 East, 147. In each of these cases the plaintiff was non-suited because he had brought his action before the credit had expired. In the more recent case in the King’s Bench of Helps vs. Winterbottom, 2 Barn. & Adol., 431, goods were sold at six months credit, and payment then to be made by a bill at two or three months at, the buyer’s .option, and this was held to be in effect a nine months.credit, and consequently that an action for goods sold and delivered commenced within six years from the end of the nine months, though more than six years from the end of the six months, was in time to save the Statute of Limitations. ' In that case also, the Court held the plaintiff might, at the end of the six months, have brought an action for hot giving a bill pursuant to the contract, but then he would not have recovered the whole price of the goods, but only such damages as the jury might have thought reasonable for that breach of the contract. We have not been able to discover that the authority of these decisions or the principle they establish, has ever been seriously denied or questioned.

On the contrary, we find Helps vs. Winterbottom, cited as authority for the proposition it announces, in the latest editions of Chitty and Parsons on Contracts, (2 Chitty, 1231; 3 Parsons, 91 ,) and no opposing cases are referred to by those eminent text writers or their learned annotators. And in support of them we may refer to the cases of Price vs. Nixon, 5 Taunt., 338; Strut, et al., vs. Smith, 1 Cr. Mees. & Ros.,