{ "id": 8684939, "name": "DICKSON, MALLORY & CO. vs. PLEASANT JORDAN & AL.", "name_abbreviation": "Dickson, Mallory & Co. v. Jordan", "decision_date": "1851-06", "docket_number": "", "first_page": "79", "last_page": "82", "citations": [ { "type": "nominative", "cite": "12 Ired. 79" }, { "type": "official", "cite": "34 N.C. 79" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [], "analysis": { "cardinality": 400, "char_count": 6747, "ocr_confidence": 0.52, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3479735691154195 }, "sha256": "de5df4dadf9921f785ecd4b948aa514ca331b47664f364a7ca43faf097024ab7", "simhash": "1:ee38ec8d0267900c", "word_count": 1241 }, "last_updated": "2023-07-14T19:40:22.332414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DICKSON, MALLORY & CO. vs. PLEASANT JORDAN & AL." ], "opinions": [ { "text": "Pearson, J.\nIt was held in Dickson v Jordan, 11 Ire, 166, that no warranty of quality is impliedin the sale of goods. An attempt is made to distinguish the case, as it now comes up, because it appears now, no price was agreed on, whereas before, it was stated that \u201c the rope\u201d was sold at the price of 13 3-4 cents per pound. No stress was laid, in the opinion, on the fact, that there was an agreed price, and the circumstance that no price was expressly agreed on, cannot distinguish this case, and take it out of the general principle, then announced.\nIf a defendant is\u2019not allowed to abate the amount of damages, for a breach of contract in failing to pay for goods sold and delivered, when the price was agreed on, by' proof of their inferior quality, it would be singular, if he was allowed to do so, because the price had not been expressly agreed on.\nIt was said, there the action was on an express contract; here, it is on an implied contract, and, as the plaintiff must declare on the \u201c quantum valebat,\u201d the question of value is open. We deny the premises from which this conclusion is drawn. The contract, in both cases, ismn express one \u2014 \u25a0 the only difference being, that in one, the parties fix on the price ; in the other, leave it to be inferred from the circumstances ; and the inference is, that the one agreed to take, and the other to give, the selling price, or (as it is termed in the case) the market price. If.the vendor demands more, it is his duty to make it known \u2014 if the vendee is not willing to give it, he must say so. Silence is taken for consent to give and take the market price. Neither party is allowed to take advantage, from the fact, that the dealing was upon this mutual understanding.\nA Doctor is sent for, and attends day and night upon a slave. It would be singular, if the owner when sued for the services, should insist, \u201c no price was agreed on,\u201d the declaration is upon a \u201cquantum meruit,\u201d and I may show, in abatement of the damages, that the slave died, and so the services were of no value. If a carpenter works day after day, according to instructions, and the. building is of no use, because of a defect in the plan \u2014 can the employer on that ground be allowed an abatement from the wages ordinarily demanded, and paid to carpenters?\nFrom the argument, and the cases cited, (those referred to in 2 Greenleaf 136, note 4,) we presume the counsel has fallen into a misapprehension, by not adverting to ihe dis2 tinction, between a case like the present, where the contract is express, and an action on a contract implied by law \u2014 as when one agrees to build a house according to certain specification for a given sum, but does not build the house according to contract, and therefore connot maintain an action on it. Still if the other party takes any benefit from his labor and materials, the law will imply, from his doing so, a promise de bono et quo, to pay what the labor and materials are worth to him. Here the question of value is open; with this restriction, however, that the price agreed on is the \u201cstandard\u201d and cannot be exceeded, and the rule is, if the house, built according to contract, be worth the sum agreed on,' how much should be allowed for it, built as it is ? In such a case, it would be out of the question to allow the plain tiffto recover according to workman\u2019s wages, or the rates of the trade, so much per square; for it may be, the defendant would not have had the house built, but for \u2022the very low price at which the plaintiff agreed'to do it.\nPer Curiam, Judgment affirmed.", "type": "majority", "author": "Pearson, J." } ], "attorneys": [ "W. N. fl. Smith, for the plaintiffs.", "Jordan and Bragg, for the defendants." ], "corrections": "", "head_matter": "DICKSON, MALLORY & CO. vs. PLEASANT JORDAN & AL.\n5n an action on an express contract for the price of Rope sold and delivered, where no price was agreed upon, the defendant can only shew What was the market price, generally, of rope ol this kind, at the time of the sale, hut cannot shew what was the real or actual value of the article sold, so as to reduce the amount, which the plaintiff would be entitled to recover, below \u25a0the market price at the time.\nAppeal from the Superior Court of Law of Perquimans County, at the Spring Term, 1851, his Honor Judge Ellis presiding.\nThis action is assumpsit, and the plaintiffs declared in two counts. First, on a special contract for the sale to the defendants of ten coils of fishing rope, at the price of 13 3-4 cents, per pound. And secondly, on a quantum valebit for goods, wares and merchandise,, sold and delivered. It appeared from the evidence, that the plaintiffs were merchants in the city of Norfolk, and the defendants were engaged in fishing operations, in the spring of 1848, on the Chowan river, in the county of Hertford. And the plaintiffs proved by one Kingfield, -their clerk, that in the latter part of the year 1847, one of -the defendants, he did not know which, left a verbal order with the plaintiffs to send them ten coils of fishing rope; that the plaintiffs did not then have the rope on hand ; that he knew nothing of any bargain between the parties as to the rope, but, that he only knew that it was forwarded to the defendants in the month of February, 1848. And that the price, at whcih the rope was charged by the plaintiffs, in their account against the defendants, to wit: 13 3-4 cents per pound, was the same as that usually charged by the plaintiffs to their other customers. And in reply to a question of the plaintiffs, as to the quality of the rope, the witness further said that the quality was good, and such as they sold to otheis for fishing purposes. The rope was 21-2 inches in diameter, and the kind of rope used in hauling seines. It further appeared, that the rope came to hand and was used by the defendants in their said business.\nThe defendants then offered to prove, that the rope was of bad quality \u2014 that within two days after they commenced using it, it repeatedly broke \u2014 and proved to be rotten and defective in quality \u2014 that it was of little use, and they had to procure other rope in the place of it.\nThis evidence was objected to by the plaintiffs, and rejected by the Court. But the Court held that the defendants might shew, and could only shew, what was the market price, generally, of rope of this kind, at the time of sale, but could not shew, what was the real, or actual value of the article sold, so as to reduce the amount, which the plaintiffs would be entitled to recover, below the market price of the article at the time. The defendants then proved that the market price, at the time, was 12 1-2 cents per pound, for such rope \u2014 and the plaintiffs had a verdict accordingly.\nRule