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by Kessler, Gilmore & Kronman

Add. Rep. 261






ARMSTRONG appearing disgusted with a valuable horse, that, after a hard ride, seemed jaded and lame, offered him for sale to several persons, for a trifle, and to M’Ghee, for £5. M’Ghee agreed, and by Armstrong's direction, took the horse home to his stable. Both lived in Greensburgh, and were on terms of intimacy. At the time, some supposed Armstrong in jest. He said so himself afterwards, and demanded the horse back, as supposing M’Ghee understood him to have been in jest. However M’Ghee chose to keep the horse; and Armstrong brought a replevin for him. M’Ghee claimed property, and retained the horse. During the suit, the horse died, having been very hard ridden, in a hot day, and drunk cold water.


Brackenridge and Young, for the plaintiff. A contract must have an agreement of the mind, understood by both parties. Inadequacy of price, known to the other party, is a ground to set aside a contract. So is imposition, as felling a horse for a barley corn for the first nail, in his shoes, and so in a duplicate ratio for every other. A contract to be carried into effect, must be fair, reasonable, and free from circumvention.


Purviance and H. Rofs, for the defendant.


PRESIDENT. A contract may be made by any signs, which shew an agreement of mind, though there be neither words nor writing: if there be understanding, it may be made between two men deaf and dumb.


There is a difference between carrying into effect an incomplete contract, and annulling a complete one. When a court of Chancery is called on for its aid, to carry into effect an incomplete contract, they will, before they give that aid which the complainant requires, compel him to do equity. If Armstrong had been over-reached, and the contract incomplete, perhaps a court of equity would not carry this contract into effect.


[262] Here is a complete contract; and the question is not, whether it shall be carried into effect, for that has been done already; but whether it shall be annulled, and the parties brought back to where they were, before it was made. Did both parties understand it as a binding contrail? Though Armstrong did not, and though M'Ghee knew that he did not; if he gave no signs to Armstrong, that be did not understand it as a binding contract; why did Armstrong trust him? And if he trusted him, why should he come here now, to save himself from the consequences of such gross folly? Is it for wanton and idle purposes, like this, that you and we fit here? It is one thing, whether M’Ghee has acted ungenerously, unneighbourly, and unhandsomely; and another thing, whether he has ailed illegally, so as to raise no obligation, or veft no right. This contract, as far as signs and all the formal parts of a contrail: can go, is complete: and, if there be no fraud, I do not fee how it can be annulled. If M'Ghee gave Armstrong ground to believe, that he considered this contract, which to all appearance is a complete one, as a mere sham or jest, conveying no right; he must take it as he then gave signs that he understood it, and remain a mere trustee to Armstrong, and bound to deliver up the horse when required. In this cafe he never had any right: the horse continued to be the property of Armstrong: and so you will now say.


As to damages, it is proper to confider what the one party loft, and what the other gained.


The jury after fitting for the remaining part of the day, and the whole of the succeeding night, were sent for into court next day, and not having then agreed on a verdict, they were discharged by consent.


At next term this cause was tried again; and a verdict was found for the plaintiff for £8 damages.


Annotated Case Information

June 02, 2014


"Armstrong v. M'Ghee" Armstrong v. M'Ghee

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