52 Mass. 268 | Mass. | 1846
It is to be regretted that a cause, involving so small an amount of property, should have taken a course which will probably subject the parties to a heavy expense in costs. But when a cause comes before this court, upon a bill of exceptions, we must decide according to our view of the law arising upon the case made by the exceptions; and although facts not embraced in them may be stated by counsel, as facts existing and susceptible of proof, yet the court are precluded absolutely from taking them into consideration. To act otherwise, would be to decide a case on the viva voce suggestions of counsel, and not on the question presented by the record.
This case first came before the court in 1844, on a bill of exceptions, by which it appeared, that on the trial, the plaintiff began by offering a receipt given by the defendant to the plaintiff, April 2d 1842, acknowledging the receipt of $150, on a contract for fifteen tons of hay, to be delivered to order, or, if sold, to be accounted for to the plaintiff. The plaintiff then offered a paper dated July 16th 1842, to this effect: Due to H. L. Hill, or bearer, 3314 pounds of hay, at my barn in Tyringham, on demand. The plaintiff then offered evidence to prove a demand of the last quantity of hay by the plaintiff, and a refusal by the defendant to deliver it, and insisted that, upon such proof, he was entitled to recover. But the court rejected the evidence, and decided that if given, the action could not be maintained on the money counts. The question was upon the correctness of these decisions.
The view which we took of the case, as then presented, was this: That the receipt of April 2d was manifestly an acknowledgment of the receipt of so much of the plaintiff’s money, upon an executory contract to deliver a given quantity of hay at a fixed price. Then the rule is very well fixed, that where money is paid on an executory contract to deliver goods, or transfer stock, or the like, in future, and the contracting party fails to perform, it is in the election of the other party to treat the contract as rescinded, to disaffirm it,
The contract being for the delivery of a quantity of hay at a fixed price, and all .of one quality, the price per ton fixed the price per pound. If then a part of the hay was delivered, according to the contract, but a precise and definite part remained undelivered, and the defendant, without justification or excuse, refused to deliver the other part on demand, the court were of opinion, that a corresponding portion of the money advanced, capable of being ascertained by computation, might be recovered back.
The court were then called on to consider the effect of the paper, due bill, or memorandum of July 2d. The word “ due,” in a memorandum given by one to another, when applied to money, payable at a day certain, or on demand, will be construed to constitute an acknowledgment of debt to the amount, and an implied, if not an express, promise to pay it, in the manner stated. But the same term, when applied to an article of merchandize, is to some extent equivocal and ambiguous, and its effect may depend upon the existing relations between the parties. Standing alone, and without other facts proved, it would seem to be an original contract to deliver the articles stipulated ; but not negotiable
The cause now comes before us upon another bill of exceptions, taken at the trial which was ordered in the former. case. No amendment was made in the declaration, and it was again tried on the money counts only. It is much to be regretted, that the particular grounds of the former decision were not before the court of common pleas and the counsel at the second trial, as it is now said they were not. When the decisions of one court are revised in another, and the cause is sent back for trial, it is almost impossible to try it intelligibly, unless the particular grounds and reasons of the previous decision are understood.
On the last trial, the plaintiff offered in evidence the same documents as heretofore stated, but in a different order. He first offered the memorandum or due bill of July 16th, apparently as an original and substantive contract for th-i delivery of.the quantity of hay specified, and the previous -eceipt of 2d April, of $150, as evidence of the consideration for such new contract. If this were the ground upon which he placed his case, although he might thereby establish n good right of action for damages, on showing a breach, yet he could not recover for money had and received, for reasons apparent in the former part of the case. There was no money had and received, no failure of consideration, but simply a breach of the performance of a contract to deliver merchandize. But this is not the ground on which we now decide.
A new element is now introduced into the case, which changes its legal aspect. On the last trial, the defendant offered to prove that there was a verbal promise by the plaintiff to him, prior to April 2d, to take a larger quantity of hay at $10 a ton, but that it was then agreed to fix it at fifteen tons, the plaintiff paying the amount in advance; that the
For the purposes of this inquiry, we are to consider the evidence, which was offered and rejected, as having the same effect as if the facts which it tended to prove had been proved.
Had these facts been proved, the court are of opinion that the action on the money counts could not have been maintained. The original receipt of $150 would be fully discharged. It would have been shown that that contract had been fully performed. There would then be no room to rescind, no failure of consideration, and no part of that sum recoverable back, as money had and received to the plaintiff’s use. As a contract to deliver hay, the plaintiff, on the proof of a breach, would recover damages, but such damages might be for more or less than the price originally given by the plaintiff to the defendant; it must be the damage actually
If, as the plaintiff avers, the defendant refused, on demand, to deliver the hay, (of which we give no opinion,) it is quite certain that he had a good cause of action, either upon the disaffirmance of the old contract, or, if that was performed, then upon the new contract given in satisfaction. The case then shows the propriety and importance, where the evidence is somewhat complicated, and may, upon a close examination, bring the case within one or another of the technical rules of law, which require the allegata and the probata to correspond, of inserting such counts in the declaration as his evidence will support; whether it presents his case in one or another of the aspects it may assume in the trial. Here the evidence must have proved one of two promises; either the implied one to refund money which the defendant had received, and could not justly retain, or an express one to deliver hay on demand; and, quacunque via data, the plaintiff must have recovered on one or the other, on proof of a breach.
An exception was taken to the instruction of the court, that the defendant must prove that the hay he tendered was merchantable \ but on this we give no opinion.
New trial to be had in this court.