2 Rob. 35 | The Superior Court of New York City | 1864
Lead Opinion
The testimony being closed, if for any reason or ground upon which the motion to dismiss the complaint could have been made or properly granted, it was error to deny the application^ which appears to have been in general terms. The court had the right to call upon the defendants to state the ground upon which it was claimed; but whether stated or not, if the reasons for granting it are sufficient in law, the
The action is for goods ordered by the defendants to be purchased by the plaintiffs, who were' “commission merchants,” and the complaint avers that acting under such order, they did purchase and pay for certain guns, and shipped them to the defendants, forwarding to them a bill of lading and invoice thereof, and claims the purchase price of the said guns, and the shipping expenses, and commissions of the plaintiffs.
The invoice defeats the existence of the relation between these parties. It is of “ hardware purchased by order, and for account and risk,” &c. The evidence clearly establishes that the alleged order never was filled by the plaintiffs; the guns shipped by them were not purchases made by them upon the order of and acting as the factor or agent of the defendants. The plaintiffs sent on board the “Isaac Wright,” some guns purchased and other guns owned by themselves; this was not a performance of the duty devolving upon them towards their principal, the defendants. The testimony did not disclose a variance which could be disregarded or amended, but is a failure to prove the alleged cause of action, not in some particulars only; but in their general scope and meaning. (Code, § 171.) Walter v. Bennett, (16 N. Y. Rep. 250,) in my opinion, is decisive upon the question arising in this case.
Belknap v. Sealey, (2 Duer, 570, 583 ; S. C. 14 N. Y. Rep. 143, 158,) does not militate against this rule; and is plainly distinguishable from the present action. In the court above, it was- held that the judge at special term below, without a jury, having found certain facts, “a general exception to the final decision of the judge, raises only the question whether upon those facts the law was properly decided.” (Id. 158.) The complaint alleged a fraudulent contract, the answer averred a mistake; and the judge found the latter to be the fact, and rendered judgment accordingly.
This was lielcj a variance only, although the late Chief Justice Duer, in this' court, and two judges in the court above, held otherwise. The court could not have permitted an amendment
The exceptions were well taken, and a new trial should be directed, with costs to abide the event.
Most of the confusion in this case, as to the rights of the parties under their contract in question, for furnishing guns for the defendants, arises from the different meanings attributed in the pleadings, and by witnesses to the words “ order ” and “ ordered,” or rather the absence of explanation of the sense in which they are used. The complaint sets out as a sole cause of action “ an order ” given by the defendants to the plaintiffs to purchase a certain number of guns in England, and ship them not later than a certain day, according to a certain course of business of the plaintiffs (which it describes,) by which they were to be paid the purchase price of the articles, and expenses and commissions; and it claims a certain sum as being such purchase price, expenses and commissions, without otherwise alleging directly the expenditure of any money by them. The answer denies giving any order for guns to be purchased by the plaintiffs in England, but admits an order given by the defendants to and accepted by them for the like number of guns at a certain price, to be ready at Liverpool (England) on a certain day for shipment to the defendants, but alleges that such order was not in writing "as required by law. The term “ order” as used in
The same ambiguity as to the words “order” and “ ordered,” appears in the only evidence offered on the trial, of the nature of the contract, to wit, the testimony of one of the plaintiffs, (Ibbotson,) and the defendants. The former, after a description of the course of business of his firm, and a statement of previous dealings with the defendants prior to August, 1858, .in which the former had sent the latter guns and gun furniture on their orders, and a promise by him, at the time of receiving one of such orders for two hundred guns, from one of the defendants, (Samuel R. Syms,) to show him a better sample .of a gun than one exhibited at that time,, went on to testify that on the 31st of August, 1858, he showed such new sample to the same defendant; and that the latter thereupon “ordered one hundred additional guns to be shipped ” at a certain time afterwards. He also stated that “ in this case the price was understood and limited at twenty shillings per gun,” although in previous dealings, they had agreed on a certain commission. The defendant, William Syms, testified that when Mr. Ibbotson came to his store, he said “he would furnish the guns at a certain price.” His co-defendant, (Samuel Syms,) testified that when Ibbotson brought the “ sample gun, he' said they were getting up the guns themselves, so that I understood they were manufacturing.” After stating that a previous order was for two hundred guns, which “ Ibbotson said they had on hand, he testified that the latter called again, and asked if they would take a hundred “more,” and he said they would.
The testimony of the defendants gives the transaction rather the character either of an order to manufacture, or a purchase. . The' plaintiffs were engaged in manufacturing guns of the kind to be furnished, and known to the defendants to be so, exhibited a sample of their manufacture, agreed to furnish them at a fixed price, although previous orders had been executed for a commission, asked if the defendants would take one hundred more, in addition to two hundred belonging to themselves, previously purchased, agreed to take the time allowed by the defendants in which “ to do them.” They also wrote by the order in the letter as to doing them, and future directions for shipment; implying ,the preparation of them by themselves, and the reception of them by the defendants as . vendees. It is not pretended that'tke price fixed, was a limita
Besides, if the contract of agency had been proved, there was no evidence of damages by the breach of it hy the. defendants. There- was no evidence offered of any money paid by the plaintiffs for them on such contract. Commissions and expenses were allowed in the verdict, besides the price fixed. If that were a sum to be paid to the plaintiffs for the guns, it was a sale or contract to manufacture ; and if it were a limit, no proof was given that the price paid equaled or exceeded it.
The claim made in the complaint, so entirely varies in its scope and meaning from that proved, that the defendants would have been entitled to a dismissal of the complaint, if they had put their motion on that ground, (Code, § 171; Belknap v. Sealey, 14 N. Y. Rep. 143;) but they did not. The plaintiffs, however, could have no amendment to their complaint to make it conform to the facts proved; because in this case it would change the claim substantially. (Code, § 173.) There is no resemblance between the duty of an agent and of a vendor, or their modes of discharging it, so that the two relations cannot be sustained at the, same time, by one party to another, in relation to the same matter. The confidence reposed in the skill, diligence, and good faith of an agent, is foreign to the doctrine of “ caveat emptor.” An agreement with the former, may be verbal; with a vendor, except under certain circumstances, it must be in writing. It is .not very easy to say what amendment should be made, to conform to the facts proved, if we had power to do it, or a mere hearing of exceptions at a general term, whether it should allege a contract to sell, or one to manufacture. If the amendment made was a contract to sell, the answer had set up the defense of the
For these reasons, I think the decision of the learned judge, before whom this cause was tried, that there was no question of fact for the jury, and his direction that they should find for the full amount claimed, to both of which exceptions were taken, were erroneous, and there ought to be a new trial, on that ground.
I concur, therefore, in thinking the motion for a new trial should be granted, with costs to abide the event, with liberty to the plaintiffs to apply at special term to amend their complaint, as they may be advised.
Dissenting Opinion
(dissenting.) In this case, a motion was made to dismiss the complaint, and the motion was denied. No ground, whatever, was stated for the motion. No request was made to charge the jury, and the attention of the judge, who presided at the trial, was not called to the alleged variance between the cause of action stated in the complaint, and the proofs offered to sustain it. It is too late to take the objection
Had the motion for a nonsuit proceeded upon the ground of variance, I think it would have heen within the power of the judge to have allowed an amendment of the pleading. If so, then we must now regard the variance as immaterial, the objection not having been taken at the trial.
Ho mere “variance” between the pleading and proof, can be deemed to be material, unless it shall actually have misled the adverse party. (Code, § 169.) This, however, is said not to be a case of variance, but a case of “ failure of proof.”
The plaintiffs allege, in their complaint, that they are commission merchants; that they received an order to purchase for the defendants a quantity of guns ; that they did purchase ninety-four guns, and shipped them to the defendants ; and they demand judgment for the value of the guns, shipping expenses and commissions. On the trial, it was proved that the guns were in part manufactured, and in part purchased, by the plaintiffs. The manufacture consisted 'in purchasing the different parts, and putting them together.
To the extent of the guns “purchased” by the plaintiffs, and shipped todhe defendants, there was not even a variance between the pleading and proof, and it is clear the plaintiffs were entitled to recover to that extent. It is, at least, doubtful whether the mere putting together of the different parts of a gun, which parts were all made by others, would .consti-’ tute the plaintiffs “ manufacturers ” of guns, in the sense that would deprive them of the right to commissions as commission merchants. But ’ even if they were manufacturers to some extent of the guns .in question, I yet see no reason why they should not be allowed to recover, under proper averments in their complaint, for the guns manufactured, as well as for those purchased.
To constitute a “ failure of proof,” the allegations in the complaint must be unproved, not in some particular, or particulars only, hut in its entire scope and meaning. (Code, § 171.)
In Walter v. Bennett, (16 N. Y. Rep. 250,) the action was to recover the possession of a draft alleged to have been wrongfully obtained from the plaintiff. The plaintiff failed to prove a conversion, and was nonsuited. It does not appear that any application was .made to the court to amend, and upon the facts the plaintiff was properly nonsuited. He should have brought an action ex contractu, instead of ex delicto.
In Saltus v. Genin, (3 Bosw. 250,) the decision was put on the ground that the cause of action alleged, and the one proved, would require different modes of trial; the one being an equity suit, which could be tried without a jury; the other being a common law action, in which the parties had the right of trial by jury.
In these cases, the cause of action, in its entire scope and meaning, was disproved, and there was nothing to amend by. Not so in the case before us. As we have seen, the plaintiffs could recover under the complaint, as it is for all the guns “ purchased.” What, then, is the scope and meaning of the allegations in the complaint P That the plaintiffs purchased and paid for ninety-four guns, which they shipped to the defendants. Proof that they purchased part, already put together, and that they purchased the different parts of others, and put them together, does not fall far short of proving that they purchased the whole ninety-four guns. At any rate, the allegation was not unproved in its entire scope and meaning. There was something to amend by, and if necessary, the pleading could have been amended.
The correct rule, in all cases of variance, as well as of failure of proof, is to require the objection to be distinctly taken at the trial, and to hold it to be too late, if taken for the first time, on the hearing of an appeal from the judgment.
I am inclined to so hold in this ease ; and, (even if the ob
But the objection is not well taken. The plaintiffs were entitled to judgment for the guns actually purchased, and, I think, also for those of which they purchased the parts, and then put together.
I think the exceptions should be overruled, and judgment entered upon the verdict.
Hew trial granted.