Winchester Partridge Manufacturing Company v. Funge

This is an appeal from the supreme court of Utah territory, in a suit brought in the First judicial district court of that territory, in March, 1882, by the appellant, a Wisconsin corporation, against the appellee, to recover the sum of $1,444.90, and interest from the filing of the complaint. The complaint contains two counts. The first sets forth that the appellee owed the appellant $2,832.40, for a balance of an account; that, for the purpose of settling such indebtedness, the appellee gave to the appellant's agents, on the twenty-eighth of October, 1880, six orders, on six different parties in Utah territory, for the delivery to such agents of wagons, 25 in number, the orders being severally for 1, 3, 2, 5, 9, and 5 wagons; that, at the same time, said agents executed and delivered to the appellee a receipt, which he accepted, as follows:

'Received from W. W. Funge orders on the respective parties     named in the annexed list, for wagons therein mentioned,      which wagons are to be received in payment of the claim of      Winchester & Partridge Manufacturing Company against said      Funge for twenty-eight hundred and thirty-two dollars and      forty cents, provided the said wagons are delivered to said      Winchester & Partridge Manufacturing Company, or their      agents, W. W. Burton & Co., in good condition and      merchantable order, at the respective places named in said      orders, on presentation thereof; and it is understood and      agreed that if said wagons are so delivered in good condition an  promptly, as      aforesaid, they are to be sold to the best advantage and for      the highest prices that can be obtained for them, and any      surplus of the proceeds thereof that may remain after paying      said debt of $2,832.40, and the actual and necessary cost of      selling the same, is to be refunded to said Funge, unless      prior to that time he shall have been paid two hundred      dollars, ($200), which he agrees, at their option, to take in      lieu of said surplus, and in full settlement of his account      with said company.'

-that 4 of the wagons covered by the order for 9 wagons were not delivered; that 21 of the wagons were delivered, but were none of them in good condition and merchantable order; and that the appellant had sold 19 of them for $1,807.43 net, and had made ineffectual efforts to sell the other 2. The second count sets forth an indebtedness of the appellee to the appellant of $2,832.40, for a balance of an account, in August, 1880, and a credit thereon of the net proceeds of certain wagons, leaving due $1,444.90, with interest from the filing of the complaint.

F. S. Richards, for appellant.

E. D. Hoge, for appellee.

BLATCHFORD, J.