55 N.H. 237 | N.H. | 1875
Lead Opinion
Amendments — Rescission of Contracts. Under the count for money had and received in the first *239 suit, the drafts set forth in the amended specification were clearly admissible in evidence, the signatures being first proved. The question of filing or amending a specification is ordinarily one of discretion, to be exercised by the judge who tries the case. The office of a specification is to apprise the defendant of the nature of the plaintiff's claim where the counts in the declaration are general. The defendant called for no specification, and the plaintiffs might therefore have offered the drafts in evidence without filing one.** The furnishing of a specification was therefore a gratuity on their part. It could not possibly operate to prejudice the defendant. On the contrary, it notified him of the exact nature of the plaintiffs' claim. No objection could lie to their filing it, or amending it after it was filed.
In the second suit, the declaration was for "corn, flour, and divers goods, wares, and merchandise sold and delivered, and for interest upon money due and owing from the defendant to the plaintiffs." Such a declaration would not be supported by a note or draft offered in evidence. A specification becomes part of the declaration when it states a cause of action consistent with the declaration. The specification cannot enlarge or modify, alter or amend, the declaration. Pickering v. DeRochemont,
The question then arose "whether the plaintiffs should have been allowed to add a count, or specification, covering said drafts." The case assumed that the original debt had been paid, and no longer existed. The amendment offered was not for the purpose of avoiding a variance, or supplying an allegation accidentally omitted; but the plaintiffs asked to insert a new declaration, descriptive of a different cause of action. It hardly admits of a question, even under the very liberal provisions of our statute permitting amendments, and of our numerous decisions upon the subject, that the plaintiffs could not be permitted to do this. It is unnecessary, however, to consider this question, because, the defendant having failed to perform his promise, which was the consideration of the plaintiffs' agreement to discharge the original debt, they are thereby placed in a situation by the defendant where they can treat the contract as having been rescinded, and consequently can fall back upon the original debt, and recover for the same under the count for corn, flour, c., sold and delivered; and the amount they would be entitled to recover would be the same as the amount due upon the two drafts. As exact justice has been done the parties by the verdict which was returned, there is no occasion to disturb the same.
This view of the case makes it unnecessary to consider the question raised by the plea of the statute of limitations. The case of Rollins v. Horn,
The result of these conclusions is, that in the first suit the plaintiffs *240 are entitled to judgment for the amount of the two drafts set forth in their amended specification. In the second suit they are entitled to judgment for the sum due for corn and flour sold and delivered, as set forth in the declaration, upon bringing said two last mentioned drafts, if still in existence, into court, and surrendering them to the defendant. The amount for which judgment is to be rendered in the second suit is the same as the amount due on the two drafts.
Concurrence Opinion
The principal question to be settled arose in the second of the two actions. In this case the declaration was for "corn, flour, and divers goods, wares, and merchandise sold and delivered to the defendant," and for "interest on certain sums due and owing from the defendant." At the trial, the defendant alleged that certain drafts had been given by the defendant and received by the plaintiffs in satisfaction of this demand, so that this demand was paid; and this was not denied by the plaintiffs. Thereupon the plaintiffs were permitted to amend by adding a count founded upon the drafts, and on trial verdict was recovered for their amount; and the question presented by the case is, whether that amendment was admissible.
I confess that I am unable to see on what principle this could be done. The defendant alleged that the debt declared for had been paid, and the plaintiffs did not deny that such was once the understanding. The difficulty was not that the cause of action had not been correctly described, that some change was necessary to adapt the declaration to the evidence, or that any allegation of matter essential to the maintenance of the action had been omitted. The defence was, that there was no cause of action. Would it aid this difficulty at all to describe this cause of action differently? Whatever form you give to it, in whatever terms you describe it, always you are met by the same difficulty, that the cause of action does not exist, — that the debt has been paid. What the plaintiffs proposed to introduce was a count in some form or other in which they should declare for indebtedness accruing to them from the fact of their having been obliged to pay money to take up the draft which the defendant averred had been received by them on the express agreement that it should be a payment of the cause of action originally declared upon. It could not, therefore, be the same cause of action, because that no longer existed. I think no case will be found in which the doctrine of amendments has been made available to revive a defunct cause of action by describing it anew.
The case of Burnham v. Spooner,
The whole doctrine in regard to the matter of payment of the existing debts by the acceptance of promissory notes or bills of exchange *241 expressly agreed to be accepted in payment and satisfaction, appears to me to be in no very satisfactory condition; and if it were necessary for the settlement of this case, a somewhat lengthened discussion of it might be interesting.
The defence set up by the defendant was, that he gave his promise in writing to pay the amount of this debt to such person as the plaintiffs should order it to be paid to, and that this promise was accepted in full satisfaction and discharge of the debt declared on. "It is true," he says, "the plaintiffs, relying upon this promise, ordered this money to be paid to a third person; but when my written promise was presented to me, I refused to perform it, and the plaintiffs have been obliged to pay back what they received for it, and have my acceptance here to surrender. The original debt is paid by this broken promise, and the promise I do not propose to fulfil if I can avoid it."
It appears to me that this difficulty admits of being solved, and should be solved, by the common and elementary principles of the rescission of contracts. This transaction is entirely between the original parties. The defendant, having broken the promise in consideration of which he says, the plaintiffs agreed to discharge the original debt, the plaintiffs elect to consider the contract as rescinded, and so electing, bring their action to recover the original debt. No third party is injured by the transaction, and the parties themselves are restored exactly to their original position. Fuller v. Little,
RAND, J., C. C. I am inclined to think that the main difficulty in this case may be removed by a resort to the doctrine of the rescission of contracts; although, if courts were disposed to insist upon the utmost precision of logic, it might not be easy to see how an extinguished contract could be revived by the rescission of another contract. But it may be considered as settled in this state, that, where goods have been sold and delivered upon an executory contract, and the party receiving the goods fails to comply with its requisitions, the injured party may consider it as rescinded, and bring his action of indebitatus assumpsit to recover the value of the goods sold. And when a party refuses to perform a contract which is void by the statute of frauds, the other party may recover back whatever property he has delivered in part execution of the contract. And where a party who *242 is indebted to another delivers goods and money in part payment, and the creditor afterwards refuses to account for them upon the debt, and requires and receives payment in full, the debtor may maintain assumpsit for the goods and money so delivered in part payment.
And when A purchased of B two ploughs, and in an adjustment of account between them the value of the ploughs was allowed to B, who afterwards refused to deliver them, and converted them to his own use, for money had and received. And I think the case of Sloman v. Cox, 1 Cromp. Mees. Roscoe 471, is a case in point. That was assumpsit sit upon two bills of exchange. The first bill, dated the 16th of March, 1833, and payable three mouths after date, for the sum of £ 18, was drawn by the defendant upon and accepted by a person named Jones, and endorsed to the plaintiff. The second bill, dated the 20th of June, and payable two months after date, was also drawn by the defendant upon and accepted by Jones, and endorsed to the plaintiff. At the trial before Lord LYNDHURST, C. B., it appeared that the first bill having been dishonored, the plaintiff agreed to take £ 8 in cash, and another bill for £ 10; and accordingly the second bill was drawn, and endorsed to the plaintiff, and the bill for £ 18 was given up to the acceptor. After the acceptance of the second bill, and before it became due, Jones, the acceptor, without the concurrence of the defendant, but while the bill was in his hands, altered the date of the bill from the 20th of June to the 24th. The bill for £ 18 was subsequently obtained by the plaintiff from the acceptor. PARKE, B., said, — "The defendant is liable to the plaintiff, as the drawer of a bill, for £ 18. Being sued upon that bill, he shows, in order to prove payment, that in consequence of an agreement with the plaintiff he gave him £ 8 in cash and a bill for the remainder. That bill turns out to be, in fact, of no value, having been vitiated by an alteration. The defendant, therefore, not being liable on the second bill, still remains liable upon the first." In the present case equity is very manifestly in favor of the verdict, and I can see no legal objection to it. The exceptions must be overruled, and there must be
Judgment on the verdict.
