Burt v. Myer

Bryan, J., after stating the case as above reported, delivered the opinion of the Court. It was competent for the jury to find that the defendants had made the contract for dealing in wheat, which is stated in the plaintiff's first prayer, and that they had broken it in the manner therein stated. The questions were fairly left to them by this prayer. It was also competent for the jury to find that the contract for the purchase of wheat by the defendants for the plaintiff was correctly set forth in the written correspondence between them, and that there was 210 other contract resp>eetiiig the manner in which the dealings in wheat should be carried on, and that they fulfilled the contract on their part, and that in accordance with plaintiff’s letters they had applied the money, which the plaintiff furnished them, to the payment of the losses and expenses incurred by him.

In other words, the jury might find that the letters contained the only contract, and that the defendants had performed their part of it. These questions ■were fairly left to the jury by the defendants’ second prayer. The writte2i correspondence contains an authority to the defendants from the plaintiff to apply the price of the corn to his credit in the dealings between them, and shows the application by defendants. Plaintiff’s letter, September 13th, 1885, and defendants’ letters, September 15th, 1885, and September 21st, 1885, and plaintiff’s letter September 22d, 1885.

So, on the ⁵⁰⁴ hypothesis of the defendants’ second prayer, the amount due for the corn was settled. The jury were instructed by the plaintiff’s thirteenth prayer, that if they found contrary to this hypothesis they should give the plaintiff a verdict for the price of the corn. The plaintiff’s second and third prayers maintain the same view of the contract between the parties as the first. The great contest in the case was about the real nature of this contract.

There was evidence which would sustain either of the conflicting theories on the subject, and the result of the controversy depended upon the prevalence of the one or the other of them. The money of the plaintiff was placed in the hands of the defendants upon a contract of some kind; and it cannot be rationally inferred from the proof in the cause that any other contract existed except one of these two just mentioned, It is true that where there is a failure to prove a sjoecial contract, the law will imply a contract by the parties to do what ex cequo et bono they ought to do; but this implication must be a reasonable deduction from the evidence, and it cannot be made, when the evidence tends to one of two diverse special contracts, and to no other result. If the contract and dealings were truly represented by the written correspondence