McConnell v. Hughes

Lyon, J. The bill of exceptions does not purport to contain all of the evidence. We cannot, therefore, review the evidence, but must presume that it sustains the findings Of fact by the circuit court. That court having found that the material allegations of the complaint were proved, it follows that if the complaint states a valid cause of action, the plaintiff was entitled to judgment. We think that the complaint does state a valid cause of ac: tion. It avers that an executory contract for the sale and purchase of wheat was made by the parties, and that, in pursuance thereof, the plaintiff delivered to the defendants, and the defendants accepted and received the wheat. It must be true that by such delivery and acceptance the title to the wheat became vested in the defendants, and the right to have the price therefor, when the same should be determined as provided in the contract, in like manner became vested in the plaintiff. But it is urged on behalf of the defendants that the transaction was invalid as a sale, because the contract did not limit the plaintiff to the selection of any particular day, or of a day within a specified time, on which the market price of wheat in [540] Milwaukee should control the price of the wheat in question, hut left him the option to select any day in the future for the purpose of fixing the price. The contract furnishes a criterion for ascertaining the price of the wheat; leaving nothing in relation thereto for further negotiation between the parties. This is all that the law requires. Story on Sales, § 220. No case has been cited, and we are unable to find one, which holds that it is essential to the validity of a sale in such oases that the criterion agreed upon should, by the terms of the contract of sale, be applied, and the price thereby determined, on any specified day or within a specified time. Judge STORY, in the section of his treatise above cited, evidently does not intend to lay down any such rule. It may be that, if the plaintiff had delayed unreasonably to make such selection after being requested to make the same, he mightbe compelled to do so. But we do not decide this point. It is further argued that, after a valid sale and before payment of the price, there must be a debt owing by the vendee to the vendor, while in this case, until the price of the wheat was ascertained, there was no indebtedness. The latter part of this proposition is erroneous. As soon as the wheat was delivered, the defendants owed the plaintiff therefor. There was therefore a debt, but the amount thereof was not ascertained. It remained unliquidated until the price of the wheat was determined. The objections that the assessor could not list the claim for the price of the wheat for taxation, and that the same could not be reached by garnishee process at the suit of a creditor of the plaintiff, while such price remained undetermined, present no practical difficulties. The assessor would fix the value of the demand according to his best judgment, as in other cases of the valuation of property and credits ; and the creditor in the garnishee proceeding would probably be subrogated to the rights of the plaintiff in respect to determingthe’contract price for the wheat. By the Court.— The judgment of the circuit court is affirmed.