This is an appeal from the supreme court of Utah 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 contains two counts. The first sets forth that the appellee owed the appellant $2,832.40, for a balance of an account; that, for the purpose of settling such indebtedness, the appellee gave to the appellant's agents, on the twenty-eighth 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 wagons are so delivered in good condition an promptly, as aforesaid, they are to be sold to the best advantage and 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, ($200), which he agrees, at their option, to take in lieu of said surplus, and in full settlement of his account with said company.' –that 4 of the wagons 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 2. The second count sets forth an indebtedness of the appellee to the appellant of $2,832.40, for a 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 therein as 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, and, the appellant electing to stand by its complaint, judgment was entered in favor of the appellee. The supreme court affirmed the judgment, and the case is here for review. 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 pro tanto 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 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.