Conaway v. Pepper
Superior Court of Delaware
Action before a justice of the peace by Harley J. Conway against Frank T. Pepper. Judgment for defendant. Plaintiff brings appeal. Directed verdict for defendant. On motion for new trial. Motion argued before court in banc, whose opinion was that a new trial should be granted. The pro narr. in assumpsit contained a count for goods sold and delivered and upon this count, the plaintiff relied. Pleas, non assumpsit, accord and satisfaction, etc.
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Action before a justice of the peace by Harley J. Conway against Frank T. Pepper. Judgment for defendant. Plaintiff brings appeal. Directed verdict for defendant. On motion for new trial. Motion argued before court in banc, whose opinion was that a new trial should be granted. The pro narr. in assumpsit contained a count for goods sold and delivered and upon this count, the plaintiff relied. Pleas, non assumpsit, accord and satisfaction, etc. It was agreed that the testimony produced at the trial before the jury was substantially as follows: The plaintiff was the owner of a wagon which was in…
1Opinion of the Court
Heisel, J.,
delivering the opinion of the court:
We are of opinion the jury would not be justified in implying a contract of sale, as a fact, from the evidence.
Can the plaintiff, where there is a tortious or wrongful taking or detention of personal property, which has not been sold by the tort-feasor, waive the tort and recover the fair value thereof, *515in an action of assumpsit upon a count for goods sold and delivered?
Hutton v. Wetherald, 5 Harr. 38, decided by the Superior Court of this state in 1848, following Jones v. Hoar, 5 Pick. (Mass.) 289, answered that question in the negative.
After a…
2Cases cited14 opinions
- Terry v. . MungerNew York Court of Appeals · 1890
- City of Elgin v. JoslynIllinois Supreme Court · 1891
- Norden v. JonesWisconsin Supreme Court · 1873
- Tidewater Quarry Co. v. ScottSupreme Court of Virginia · 1906
- Roberts v. EvansCalifornia Supreme Court · 1872
9 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Western Pac R.R. Corp. v. Western Pac. R. Co. Metzger v. Western Pac. R. Co.Court of Appeals for the Ninth Circuit · 1952
- Western Pac R.R. Corp. v. Western Pac. R. Co. Metzger v. Western Pac. R. Co.Court of Appeals for the Ninth Circuit · 1952