Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-05-06

CCndsnsed Decisions of the Supreme
CSurt. Reported for the Appeal by
u. CIay King, Tsq

Il Ill @-@NE@4 = -
3. are competent Witnesses for the de
PENDANTS c. d D., to prove that no part
nership existed.
D No.. 4. Nj. c. ATpin ys. Reeder, from
tbs MeNairy Circuit.
I Facts In October, 1851, the defendant
in error, Rseder as administrator Of Me
Coy, had q Eublic sale Of the goods anC
7 chRttles of the intestate. At that Esls
the plaintiff in error, McAlpin, BID
eff 3 lot of cotton belonging to the estate,
: part of it being picked out and part IN
the field. By the terms Of the sale the
f: cotton was TO be delivered when ali was
picked out, and the purchaser wAs to ex-
ecute his note, with security, for the
, price, payable twelve months from the
sale. The cotton was knocked off tC
MeAlpin at two cents per pound. In
, March, 1852, Reeder notified MeAipin
/, that the cation was ready for delivery,
and requested him to come and get it.
In August, 1852, McAlpin came and
took the cotton away, but Reeder tbeI
insisted that he should be paid tbs pric,
Of the cotton at that time, which wa
six cents per pound, but MeAIpin con
tended that be was entitled to the cotton
at the original price of two cents pc
pound. Reeder sued MeAlpin in as
sUn9pS5t.
Held That If the cotton was deliv
cred upon q mutual mistake as to tie
price 20 be paid, AID the minds Of tn
parties had not in fact met, each on;
~suppOsing that the other bad sgreed to 2
price to which be had not agreed, then
10 contract ex sted. Bot II the vendsl
takes The PROF erty Voluntarily, knowing
that there is 10 eontrset as to the price
to De paid, he must be held to have con.
ssnted to tho contract Yhiea the
la8 implies when property is solo
withcut stipulation as to price, to-
Wit, that be sksll Pay its reasonable
velue st the time. And, il the vendze
takesif, knoWibg that the vendor under
stands the contract to be for & particular
price, he must be he'd 10 have agreed =
pay that price.
The Circuit Judge charged the jury
that if MeAlpin did not go and receive
the cotton within ten days after notice
that It was ready, and comply with his
part Of tins contract, the contract would
be abandoned By him, and that il he re
eeived tie cotton after that time,
Whistler thece was any other contract or
not, that the Jaw would msks aim rag
for il at EhsSeveF the price Of cotton was
when he rseeivei it. This Is IN error.
II under the circumstances shown in mis-
record the purchaser failed within 8
reasonable time after notice to complete
the purchase, the vendor hsd the riRhi
to treat the contract as TesciDdsd. But
Il should bEve been left to the jury 60 say
whether the Ll2,ntiff elected to treat the
cOatra.t IS rescindeG, or whether be
waived the right 20 to treat it, and elect
ed to deliver TIE cotton upon the original
contract. aud whether any new contract
was N de, end If 80, what.
DO .. Agtry vs. Cofman. From the
the HarCin Circuit Court. Trespass for
taking prOpsr y brought by Co6fman vs..
Aubry verdict aud judgment ia favor
o. Gilman fer 1886. and appeal in eTF0I
by Auory. TIE proof skaFsd thai
AubTy, in April, 4S54, went into the
town OK Hamburg with 8 squad of Cen
.ederate cavalry, and while there were
active in hing property from citizens
81 that place, aud that he was armed. /
The proof $50 shOWes that AubIy was
eOgSsllsd by the command 70 act as q |
gursN, and tbRs ne did not 90 EiiIingIy.
After the command left Hamburg the
property Of Codn6n was taken, There |
is 20 testiFoOny that Aubry wSs present
when the property two nulesl Of Coff- |
man was taken, or Q a he aided IN the ]
he rCspass Opt the tsstiaaony showed
that he was present both before ard after
tas properly 1as taken, Snd that he re- |
TUNED 70 his hons the same evening.
The Circuit Judge charged The jury that
IL they should be Of the opinion, from
the proof that Aubry was with the SOL
diers willingly, and was siding aud soet- /
tlrg IN the tort thst vss coouitred at |
Hsmbulg, that such Proof though not
e~cnelusiys, would ereais a Presumption
that he was aiding aid GssistI 2 ia The
tort committed en- CofmAn's property,
and would impose on Aubry The onus OF
showing by proof tee he was dissenting
70 tie tcrt committed at the house Of
Cohman that il ACbry was forced to 60
with the soldiers q = guide, and vent
reluctantly ia the first instance, but
afterwards asssnlgd TO the tOr:s anu par
~tcipeted therein, then he would be q
Brong-doeF Srd liable that it was not
Necessary for the proof to show
that Aubry was present st ths
house Of CGfman at the time the
tort was committed If he was present
With any potion OF tbs command, he
would oe e~opstrnetiyely present, anu
f0r their acts. Held; That
the ohaTgei s erroneous. The fact thstAu-
bry w2s along with he troops as q guide
1t Hamburg, aud participated in the
tOrts committed there, raises no pre-
III t@OA NG@t 10 POI N1hEA 81 ~ A1E =
wrongful set 10 taking the property of
the plaintiff Il SEs a circumstance that
be proved in connection with
other facts IN the esss submitted to the
jury in their determination OF the faet
WHISTLER the defendant participated in The
tort. III the defendant was not 8 part CT
the command who were Engaged in a
common, unlawful purpose, - make
him liable, the proof mUst show that be
participated ia the unlawful act sued for;
and although he may have bsen present,
unless he aided and assisted in the tres
pass he could not be held liable, being
no part OF the command.
Tie Circuit Judge in his charge re-
fsrTed TO a case Tried By Judge Houck, in
East Tennessee, where 8 citizen Yss
held liable In damages, who told Con-
federRte troops that there was az old
Union man living one mile of, and that ;
he had 5 coed hoTEe, and the troops went
and took the horse. This action is cal
to mislead the Jury, and is error.
No. 8. Herring vs. Russell. From the
Circuit C~curt.-Eacts: A gov
srDment Cfi3sP OF the army took fcOm
defendant forage to the amount OF ;
$1,000 in value. The defendant agreed
with the plaintif to psy him 500 Il the
would obtain for The defendant
q proper government voucher for the
The plaintiff obtained voucher
and delivered it to the defendant, which
On presentation 70 a q lartermsster, he6e-
olined to pay, alleging az 3 reason for his
that the voucher H&s defective. I
But after q slight modification the I
voucher was paid TO the defendant. A Z
si8tile copy OF the voucher was pro-
iuoed aud proved on the trial. The
court charged the jury that, as q matter
law, q voucher exactly like the copy
on the trial was s valid and :
voucher, and that the plaintiff
was entitled to recover il he complied
With bis contract ia procuring such /,
proper voucher for the defendant. :
Held: That the cbargs Was correct. The !
bsiag q written contract, it Was
he duty Of the court to pronounce on its 4
a q mstter OF law, and not {
ave the same to the jury as s matter Of 2