Winchester Partridge Manufacturing Company v. Funge/Opinion of the Court

The appellee filed a demurrer, and alleged therein as a ground of demurrer to the complaint, and to each count separately, that it did not state facts sufficient to constitute a cause of action. The district court sustained the demurrer, and, the appellant electing to stand by its complaint, judgment was entered in favor of the appellee. The supreme court affirmed the judgment, and the case is here for review. We are of opinion that, on the terms of the receipt, which expressed the contract between the parties, the appellant, or its agents, were required to determine, on receiving the wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions; that the receiving the 21 and proceeding to sell them was an acceptance of the 21 in payment pro tanto of the claim; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee, under the contract.

As to the second count, it sets forth a good cause of action. That count does not involve, on its face, any question as to the contract evidenced by the receipt embodied in the first count.

The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct such further proceedings in the suit as may be according to law and in conformity with this opinion.