The herald., 1893-07-30
DURKEE'S IRON GATES
THEY EVOKE SOME POINTS ON THE
LAW OF CONTRACTS.
Judge Van Dyke Hands Down an In
teresting Opinion and Settles .
Case ofInterest to Bus
mess Men.

The case of Harry Philip vs. J. E. Dur
kee was decided yesterday by Judge Van
Dyke in accordance with an opinion
filed giving judgment for the plaintiff
for $3.50.
The action was brought upon q con-
tract alleged to have been made by the
defendant with Fruhling Bros. August
81, 1891, for the manufacture of some
iron gates and lamp to be erected upon
posts prepared by defendant upon his
premises for s430 which was assigned to
the plaintiff.
The defense to be considered was the
insanity of the defendant at the time Of
entering into the contract.
The evidence showed that the defend
ant camo to the firm, inquired about the
manufacture of iron gates, examined
patterns and the following day returned
and ordered them to manufacture them
for the price stated. The price was not
only reasonable but below the real value.
At the time the defendant transacted
the business the court says there was
nothing in the evidence to indicate that
his conduct was out of the ordinary busi-
ness way. At the same time he was
dealing with the Schroeder & johnson
company quite extensively and pur-
chased large amount of merchandise
from them and his appearance was per-
fectly sane.
The Fruhling Bros. completed the
goods during September, when Mr..
Fruhling drove to tho premises OF the
defendant to SEQ If the posts were ready,
60 that the gates conld be hung. He
did not see the defendant and left word
with the man in charge OF the place.
Some time thereafter the defendant's
fsther-in-law requested Fruhling not to
proceed any further with the gates, but
at the time they were practically COM
pleted and were ready to be set up be-
fore the defendant became notoriously
insane. He was .adjudged insane and
his wife was appointed his guardian.
The court in discussing the issues
says that the liability of insane persons
on contracts is asisubjsct upon which
there has been considerable diversity oil
adjudication. As q general proposition,
one who is non compos mentia, whether
by reason of insanity or idiocy, cannot
make binding contract. because there
cannot be that agreement of minds
which is the very essence OF contract.
1t seems to be entirely settled, however,
that in order to avoid contract on the
ground Of unsoundnesH there must be
an inability to know what the act lie to
which the contract relates or intelli-
gently to will to do.euch act.
"rhis is an action" concludes the
court, "for the detriment caused by the
breach Of buyers agreement to accept
and pay for personal properly whore the
title and property is still vested in the
seller, and in euch case the measure OF
damages Is the excess of the amount
due from the buyer to the seller, under
contract, over the value of the property
to the seller. 1t is claimed on the part
OF the plaintiff that he Ia entitled to the
full contract price, inasmuch as the
property in his hands ia OF no value.
suggesting that the defendant would
then have right to the property.
"This is not an action, however, for
the price Of an article sold and delivered
and the measure of damages in this case
is as stated, and 10 fixed by the code ;
G. O., 3Sl0-3311. It is incredible that
the gates and lamp are not OF some
value; they would be worth something
even as old iron, and their value in the
hands Of the defendant must be de-
Quoted from the contract price of the
gates when hung according TO contract.
Judgment will 60 for the plaintiff In the
sum Of $780,"