23 W. Va. 617 | W. Va. | 1884
The first question arising in this case is: Did the circuit court err in overruling' the demurrer to the declaration and to each count thereofV The first count, it is insisted by the counsel for the defendant below, was fatally defective, first, because it fails to aver performance by the plaintiff; and secondly, because it fails to allege any consideration for the promises of the defendant stated in this count; and, thirdly, because it does not aver the non-payment of the damages claimed in the count. The count is good. The following consideration is stated in it: “ Eu consideration that said plaintiff then and there undertook, promised and agreed to and with the said defendant to pay him, the said defendant, fourteen dollars per stack for each of seven stacks of hay; and also that he, the said plaintiff, then and there promised, undertook and agreed to and with the said defendant to pay him the like sum of fourteen dollars on certain conditions named ; and that the said plaintiff also promised, undertook and agreed to and with the said defendant, that he, the said plaintiff, would cause to be driven and placed in the said defendant’s possession and iuclosure a sufficient number of cattle, &e.; the said defendant undertook and agreed to and with the plaintiff, &c.” The count proceeded then to set out in detail the promises of the defendant, the breach of which are complained of in the count. These several promises made by the plaintiff to the defendant are a good and sufficient consideration for the promises made by-the defendant to the plaintiff. This is so fundamental that it is unnecessary to cite cases, where a promise made by the plaintiff to the defendant has been regarded as a matter Of course a consideration for the promises of the defendant to the plaintiff the basis of the action, but many such authorities are cited in Parsons on Contracts vol. 1 p. 448. But it is claimed, that there is no allegation, that the plaintiff performed the promises, which he made to the defendant,
There is nothing in the claim of the defendant’s counsel that the first count should have alleged the non-payment of the damages claimed. Tt is true that in Virginia and West Virginia it has been decided, that where'an action is brought for a debt, whether it be brought in the form of debt or assumpsit, the declaration most allege the non-payment of the sum of money claimed, but even this, though settled law in this State, is regarded elsewhere as unnecessary at least in debt, and the decisions in Virginia and West Virginia, though they firmly establish the law here, seem not consist- ' ent with correct rules of pleading. (Douglass v. Central Land Company, 12 W. Va. 508 et seq.) But nowhere has it been held, or, so far as I know, even suggested that in an action of assumpsit based on a promise not to pay money but to perform some act, that it was either necessary or proper in the declaration to allege the non-payment of the damages. Such an allegation, it seems to me, would be absurd; for the object of the suit is to recover the amount of these very damages, when they shall have been ascertained by a jury.
Before considering the demurrer to the Second count in this declaration wo should have a clear conception of what in law constitutes a sufficient consideration to support a promise. If there be a dispute between parties, in which one of the
The consideration, which is set forth in a declaration to support the defendant's promises sued upon, is not to be regarded as amere inducement or preamble; but it forms an essential portion of the contract, on which its validity depends, ft must, therefore be trnlv stated and is required to be proven at the trial as stated, or the plaintiff must fail because of the variance. If an entire consideration be stated in the declaration as the basis of the defendant’s promise, the entire consideration stated and not merely a portion of it must be proven at the trial, or the plaintiff must fail because of the. variance. Or if the consideration named in the
The defendant in this case according to the allegations of this count of the declaration was a bailee of the cattle of the plaintiff, and the bailment was one founded in the mutual benefit of each party. In such case it is the duty of the bailee to take ordinary care of the thing bailed; he must use ordinary diligence to preserve the property entrusted to his care, where each party is to receive benefit from the bailment. It follows therefore, that the bailee in such case is liable for ordinary neglect in not keeping safely the property entrusted to him. (Commercial Bank of New Orleans v. Martin, 1 La. Ann. 344; Maury v. Coyle, 34 Md. 238; Third National Bank v. Boyd, 44 Md. 47; Scott v. Crews, 2 S. C. 522; Girard Fire Insurance Co. v. Marr, 46 Pa. St. 504; Second National Bank v. Ocean National Bank, 11 Blatchf. 362).
It is obvious, that-the pleader designed as the first consideration for the promise of the defendant in this count to set forth, that the defendant had rendered himself liable to the plaintiff, because as a bailee of the class above specified he had failed to take ordiuary care of the cattle intrusted to him, and they had been injured by reason thereof, by' being accidentally run over by an engine of the Baltimore and Ohio Railroad Company, whose track they were upon through neglect of the defendant as such bailee, aud as such bailee h.e was liable to the plaintiff for the damages, which he had sus-, tained. by such injury to his cattle; anda dispute having thus arisen, to avoid litigation the defendant promised the said plaintiff to pay him the value of said cattle, as the same were before they were injured and killed. The above allegations are what was necessary to set forth in such count, in order
But the statements in this count of the declarations fall short of what is necessary to make this first consideration sufficient to support the promises. The statements of the manner, in which the cattle got on the track of the Baltimore and Ohio railroad, fail to show, that the defendant had not used ordinary care as such bailee to preserve these cattle, and it is not alleged, that he did not use this ordinary care; had this been alleged it would it seems have been unnecessary to state more definitely the. manner in which they got on the track. It does not appear, that the turning out of the cattle stated was an imprudent act or an act of negligence, for many prudent persons so ..turn out their cattle, and it may he that the place, where they were thus turned out, was miles away from the railroad track, and there was no probability, that they would wander on to the track. It sliopld. at least have been
But a second consideration is alleged in this count: “That the plaintiff Avoidd sell and deliver to the defendant the bruised, wounded and dead cattle.” The promise based on this consideration is: “That he Avould pay to the plaintiff the value of the said cattle as the same were before they had been bruised, Avounded and killed.” I say this promise is based on this consideration alone, because the first consideration being as stated a void consideration, Avhile it is not ground for demurrer, is to be regarded as mere surplusage; and the second count is to be regarded precisely as if this first consideration had not been mentioned,
I will now consider, whether there were any errors committed in the trial of this case. The first hill of exceptions as well the third, fifth aud ninth instructions asked by the defendant and refused by the court set out in the second bill of exceptions raises the question, whether under this second count in this declaration the plaintiff could introduce proof, that the defendant agreed to take the cattle after they were wounded and killed aud pay for them thirty dollars per head, and if on such proof the jury could find a verdict on this second count for the plaintiff, It seems to me ob
The plaintiff’s counsel having first confounded this special count with the common count of qwentum valebant then confounds that count with the common count of indebitatus as-sumpsit and attempts to apply a well known rule of the law laid down in Brown & Rives v. Ralston & Pleasants, 9 Leigh 532, 545, that where the terms of a special contract have all been performed and nothing remains to be done under the contract except for the .defendant to pay a specified amount of money, this money may be recovered under the general indebitatus assumpsit count. If there were in this declaration any indebitatus assun^sit count, there can bo no question, that on the proofs set out in bill of exceptions Lío. 2 the jury could have rendered q verdict for the plaintiff, and that under
Tn the evidence certified there is proof that the defendant and his brother, Columbus Ford, by special contract agreed to pay the plaintiff thirty dollars per head for the cattle that were killed. Upon this the instructions in bill of exceptions No. 2, which are marked No. 4 and No. 7, are based. Tt seems to me obvious, that these instructions lay down the law correctly, except that instruction Vo. 4 is somewhat carelessly drawn and should have been modified so as to read like the seventh instruction: “If the jury believe from the evidence, that the only promise of the defendant to pay for the cattle was a joint promise with Columbus Bord to pay the plaintiff thirty dollars per head for the cattle in the declaration mentioned as killed, then they must find for the defendant on the second count.” So modified the court ought to have granted these two instructions and it erred in refusing: for it seems entirely clear, that in an action against one party on a promise or contract made by him to pay the plaintiff a certain sum recovery cannot be had, if the contract proven is not the one stated in the declaration but a joint contract made' by the defendant aud another.
The second instruction set out in the bill of exceptions No. 2 as asked by the defendant was, I think, properly rejected by the court, both because it is so worded, that it would tend to confuse rather than enlighten the jury, and for the further reason that, so far as I can comprehend its meaning;, it seems to me to lay down the law incorrectly.
The execution issued on the judgment rendered on this verdict by the circuit court has been sent up with the record; and from this execution it appears, that the plaintiff's costs in this suit in the circuit court were two hundred and seventy dollars. These costs, it is claimed, are much greater than they should be and have arisen from many witnesses having been summoned who were not examined. "With this subject or with the correction of abuses in this respect, if any exist, this Court has nothing to do. The execution, which has been sent up, we can not even look at, as it constitutes no part of the record. For any such abuses, as are complained of, if they really exist, the circuit court alone or at least in the first place must be looked to for redress. It has certain powers in directing the taxation of costs, and if there is abuse in this matter, the defendant should ask that court for redress. When a new trial is awarded in this Court because of errors of the court in the trial below, it is usual to require, that the costs of the former trial should abide the result of the suit. I see no reason for departing from this rule in this case.'
REVERSED. REMANDED.