Burke County NcArchives Court.....Thompson, Vs. Morris 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:29 pm Source: North Carolina Reports Written: 1811-18 January Term 1813. WILLIAM THOMPSON v. EDWARD MORRIS. From Burke. The terms of a sale were that persons purchasing to the amount of 20s. or upwards should have a credit of twelve months; that they should give bond with approved security; and those not complying with these terms should pay four shillings in the pound for disappointing the sale, and return the goods before sunset. A mare was put up for sale, and struck off to A at the price of £50 6s. The mare was delivered to him, but he failed to give bond and security, and he did not offer to return the mare for several days, when B refused to receive her, and immediately brought an action of indebitatus assumpsit for the price: Held, that the action affirmed the sale, and therefore could not be sustained before the term of credit expired. An action for breach of contract in not giving bond with security, or for not returning the mare, would have been the proper remedy. In this case the plaintiff declared in indebitatus assumpsit for the price of a mare sold and delivered to the defendant, and on the trial he proved that at a public vendue made by him on 25 August, 1808, conducted according to certain terms then publicly proclaimed and made known to the defendant, the mare was put up and struck off to the defendant at the price of £50 6s., he being the highest bidder; that the property was delivered to him, but he omitted to give bond and security for the sum bid, on that day or at any other time, nor did he return or tender the mare on the day of sale; that a few days afterwards the plaintiff called on the defendant for his bond and security, which he did not give, and then for the first time offered to return the mare, which the plaintiff refused to accept. The suit was commenced in October, 1808. Part of the terms of sale were that those who purchased to the amount of twenty shillings or upwards should have a credit of twelve months; that persons purchasing should give bond with sufficient security, and that those who did not comply with the terms of sale should pay four shillings in the pound for disappointing the sale, and return the goods before sunset. The case was submitted. Henderson, J. It is clear from the authorities that the present action affirms the sale; therefore, it cannot be sustained before the term of credit expires. An action for the breach of contract in not giving the bond, or for not returning the mare, would have been the proper remedy. The principles which govern this case are well established and clearly laid down in 4 East, 147, and 3 Bos. and Pull., 582. As, therefore, this action was commenced before the cause of action occurred, a nonsuit must be entered. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/burke/court/thompson557gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 3.6 Kb