
    WINCHESTER & PARTRIDGE MANUFACTURING COMPANY v. FUNGE.
    APPEAL FROM THE SUPREME COURT OF UTAH TERRITORY.
    Submitted December 6th, 1883.
    Decided January 7th, 1884.
    
      Contract.
    
    For the purpose oí settling a debt, the debtor gave to the creditor orders for 25 wagons, and the creditor gave to the debtor a written receipt, which he accepted, stating that the wagons were to be received in payment of the claim, provided they were delivered to the creditor in good condition and merchantable order, and that it was understood and agreed that if the wagons were so delivered in good condition they were to be sold for the highest prices that could be obtained for them, and the surplus, after paying the debt and cost of selling, should be refunded to the debtor ; 31 of the swagons were delivered, but none of them were in good condition' and merchantable order ; the creditor sold 19 of them and made ineffectual efforts to sell the other 3, and, after crediting the net proceeds of sale, sued the debtor to recover the balance of the debt: Held, That the receiving the 31 wagons and proceeding to sell them was an acceptance of them pro tanto in payment of the claim ; that the contract for the payment in wagons was unfulfilled as to the 4 wagons not delivered ; and that the price for which the 19 wagons were sold, and the selling value of the 3 not sold, had no bearing on the case, unless there was a surplus óf the proceeds of sale to be refunded to the debtor, under the contract.
    This ivas an appeal from the Supreme Court of Utab Territory, in a suit brought in the First Judicial District Court of that Territory, in, March, 1882, by the appellant, a Wisconsin corporation, against the appellee, to recover the sum of $1,444.90 and interest from the filing of'the complaint. The complaint contained two counts. The first set forth that appellee owed the appellant $2,832.40, for a balance of an account; that, for the purpose of settling such indébtedness, the appellee gave to the appellant’s agents, on the 28th of October, 1880, six orders on six different parties in Utah Territory, for the delivery to such agents of wagons, 25 in number, the orders being severally for 1, 3, 2, 5, 9 and 5 wagons'; that, at the same time, said agents executed and delivered to the appellee a receipt, which he accepted, as follows:
    “ Received from W. W. Funge orders on the respective parties named in the annexed list, for wagons. therein mentioned, which wagons are to be received in payment of the claim of Winchester & Partridge Manufacturing Company against said Funge for twenty-eight hundred and thirty-two , dollars and forty cents : Provided the said wagons are delivered. to said Winchester & Partridge Manufacturing Company, or their agents, W. W. Burton & Co., in good condition and merchantable order, at the respective places named in said orders, on presentation thereof; and it is understood and agreed that if said wágons are so delivered in gobd condition and promptly, as afore-said, they are to be sold to the best advantage a,nd for the highest prices that can be obtained for them, and any' surplus of the proceeds thereof that may remain after paying said debt of $2,832.40, and the actual and necessary cost of selling'the same, is to be refunded to said Funge, unless-prior to that time he shall have been paid two hundred dollars ($2.00),, which he agrees, lat their option, to take in lieu of said surplus, and in full settlement of his account with said company.” •
    That four of the tvagons covered by the order for 9 wagons' ■were not delivered; that 21 of the wagons were delivered, but were none of them in good condition and merchantable order; and that the appellant had sold 19 of them, for $1,807.43 net, and had made ineffectual efforts to sell the other %• The second count set forth an indebtedness of the appellee to. the appellant of $2,832.40, for á balance of an account, in August, 1880, and a credit thereon of the net proceeds of certain wagons, leaving due $1,444.90, with interest from the filing of the. complaint.
    The appellee filed a demurrer, and alleged thereimas- a ground of demurrer to the complaint, and to each count separately, that it did not state facts sufficient to constitute a cause, of/, action. The district court sustained the demurrer, andpthó appellant electing to stand by its complaint, judgment' was entered in favor of the appellee. The supreme court affirmed the judgment, and appeal was'taken.
    
      Mr, F. 8. Richards, and Jir. R. K Williams for appellant.
    
      Mr. James FT. Kimball, Mr. Abbot R. Key,wood, and Mr. Enos I). Iloge for appellee.
   Me. Justice Blatcheord

delivered the opinion of the court.

We are of opinion that, on the terms of the receipt which expressed the contract between the parties, the appellant or its agents were required to determine, on receiving the wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions ; that.the receiving the 21 and proceeding to sell them was an acceptance of the 21 in payment jiro tanto of the claim; that the contract for the payment in wagons was unfulfilled, as to the i wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee under the contract.

As to the second count, it sets forth a good cause of action. That count does not involve on its face any question as to the contract evidenced by the receipt embodied in the first count.

The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct such further proceedings in the suit as may he according to la/w and in conformity with this opwvioni  