majority">Pettit, J.

This suit was brought by James Yazell against John W. Kirkpatrick and Nathan Porter. The plaintiff below obtained a judgment against the defendants, who are appellants here. Since the appeal was taken, Yazell has died, and his administrator, Reuben Alexander, is properly substituted in his place as appellee.

The complaint and the contract on which it was founded were as follows:

“James Yazell complains of John W. Kirkpatrick and Nathan Porter, partners in trade under the name and style of Kirkpatrick & Porter, and says, that heretofore, to wit, on the 9th day of January, A. D. 1871, he entered into an agreement with said defendants, a copy of which marked ‘A’ is filed herewith and" made a part hereof, by which he sold to said defendants fifty hogs, to be corn fed from that time to the time of delivery, which was to be the first half of August, 1871, and to be weighed at Mr. Gordon’s scales, near Burlington, Indiana. And for which defendants agreed and were to pay plaintiff six dollars and fifty cents per hundred pounds gross weight, and thereupon paid to plaintiff *596fifty dollars on said contract; and the plaintiff avers that on the morning of the 16th day of August, A. D. 1871, and in the forenoon of said day, at Mr. Gordon’s scales, Indiana, he had said fifty hogs, which were fed and fattened on corn, and were fed on corn from January 9th, 1871, to the said 16th day of August, 1871; which was the first half of August, A. D. 1871, and then and there on the scales aforesaid weighed said hogs, and was then and there ready and willing ■ to deliver the same to said defendants, to wit, in the forenoon of the 16th day of August, A. D. 1871; but that said defendants were not there to receive them, and did not, and would not then and there receive them, or any part thereof, to the damage of the plaintiff one thousand dollars; wherefore, plaintiff demands judgment for one thousand dollars and other proper relief.”

Copy of contract.

“Jan. 9th, 1871.

“ Article of agreement made by and between James Yazell, of the first part, and Kirkpatrick & Porter, of the second part.

“ James Yazell, of the first part, agrees to furnish to Kirkpatrick & Porter fifty head of hogs, with the exception of the loss by disease and failing to fat. Said hogs to be corn fed from the present time till the time of delivery, which is the first half of August, 1871; to be weighed at Mr. Gordon’s scales, near Burlington. Kirkpatrick Sc Porter, of the second part, agree to pay six dollars and fifty cents per hundred gross weight, in cash, at the scales; fifty dollars paid in advance. his

“James X Yazell, mark

“Kirkpatrick & Porter.”

To this complaint, there was a demurrer for want of sufficient facts overruled, and proper exception taken.

Neither the contract nor the complaint says in specific terms or words where the hogs were to be "delivered, but *597perhaps it may properly be inferred that they were to be delivered at Mr. Gordon’s scales, as they were to be weighed and paid for there.

The appellee claims, and acted upon the theory, that he had the right to deliver, or offer to deliver, the hogs till noon of the 16th day of August, and he should have shown in his complaint that he had the hogs at the proper place and was ready to deliver them up to that time. If the appellee had this time to deliver, the appellant had the same time in which to accept or receive the property, in the absence of any notice that it would be delivered on a different day. For any thing that appears in the complaint, 'the hogs may have been weighed and driven away before sunrise, because the appellants were not there to receive them. Suppose the appellants had gone to the scales before or at sunrise, and because the hogs were not there, weighed and ready for acceptance, should have left and brought suit, they could not have maintained a complaint that did not show that they were ready to receive the hogs up to noon of the 16th of August, 1871, according to the theory of the appellee. There is no showing in the complaint that any notice was given of the time the hogs would be weighed and ready for delivery. Because the complaint does not show that plaintiff was at-the scales with the hogs, and was ready to deliver them, till noon of the 16th day of August, 1871, we hold it bad, and that the demurrer should have been sustained to it. Larimore v. Hornbaker, 21 Ind. 430.

The other subsequent questions sought to be presented need not be noticed, for they are not properly in the record, as the cause^would have been at an end if the ruling on the demurrer had been proper, unless the complaint had been amended.

The judgment is reversed, at the costs of the appellee, with instructions to the court below to sustain the demurrer to the complaint.

Petition for a rehearing overruled

Citation profile

Relationships

How this case has been treated — in progress