Thompson v. Morris, 4 N.C. 102, 1 Car. L. Rep. 102 (1813)

Jan. 1813 · Supreme Court of North Carolina

4 N.C. 102, 1 Car. L. Rep. 102

Thompson v. Morris.

THE Plaintiff declared in indebitatus assumpsit, for the price of a mare sold and delivered to the defendant, and proved on the trial, that at a public vendue, made by him, on the 25th August, 1808, conducted according to certain terms which were 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.

The part of the terms of sale above referred to, is as follows: “5. Those who purchase to the amount of twenty shillings or upwards, shall have twelve months. Any person purchasing shall give approved security, and such as do not comply with the above article shall pay four shillings in the pound for disappointing the sale, and return the goods before sunset.

Henderson, J.

delivered the opinion of the Court:

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 Pul. 582. As, therefore, this action was commenced before the cause of action accrued, the non suit must stand.