67 Me. 446 | Me. | 1877
The writ in this case contains three counts, 1st, on a special contract for the sale and delivery to the defendants of a certain quantity of fruit box shooks; 2d, account annexed ; 3d, quantum meruit. The case finds that all the counts are for the same cause of action, for shooks furnished under one and the same contract. It further appears that the contract was reduced to writing in three parts, each of which was signed by both parties. The plaintiffs had one, the defendants one, and the other was delivered to the broker. The writing was not produced by either party. The plaintiffs offered some proof of the loss of their part, and then proposed to prove its contents. This was not permitted by the court and such ruling was clearly unobjectionable; for though one copy might be lost parol proof of its contents would not be admissible until the absence of the other parts were duly accounted for. Poignard v. Smith, 8 Pick. 272, 278. Dyer v. Fredericks, 63 Maine, 173, 592. There was therefore no proof of the express contract and the court ruled that the action could not be sustained under the first count.
The plaintiffs then proved under the second and third counts, “that after the execution of the contract they proceeded to furnish shooks ; that the quantity sued for had been furnished, and the value of the same; that a large part of the amount due had been paid, leaving a balance due with interest $2,579.75, which they
If the testimony objected to and 'received, was legally admissible, the instruction to the jury was right, as there was no testimony in the case upon which the jury could fix the amount of their verdict except that which shew the market price, or actual of the shooks delivered. Hence the admissibility of the jjtestimony objected to is the real question involved in these excepWe think the testimony should have been excluded. Under the written contract it was plainly incompetent for the reason already referred to that no sufficient foundation .had been for the admission of secondary evidence, and for the additional reason that it did not purport to give the terms or conditions of the contract as it was made by the parties. Under well settled rules of law, the writing was the only legal evidence of the contract, and by rules of law equally well settled, parties must abide by the contract made, unless waived by the same authority which made it. There is no pretense here that the defendants intended to waive their rights under the agreement entered into by them, nor do we see any evidence from which an inference can be drawn, that they have legally become liable under any contract different from that shown by the writing. Tet by the evidence received and the consequent ruling they are made liable under an implied contract for the market price or actual value of the shooks delivered, when in fact the contract was an express one and as appears for a specified price. How far in other respects the two contracts may have differed does not appear, nor it material for the difference which is apparent is sufficient, and even if none were apparent the ’ defendants had a right to the legal proof of all the terms of their agreement. It is said the defendants should have produced the part in their hands and thus
It is undoubtedly true as a general proposition that a plaintiff presenting his case with several different causes of action, or the same cause in different forms, failing to sustain one count may recover upon any other in his writ to which his testimony may be adapted and sufficient. But it can hardly be said that testimony is properly adapted to sustain an implied contract when all the acts proved by it are shown by the same or part of the same testimony to have been done under an express contract. When the express contract is shown, it follows, as one of the fundamental principles of the law, that none can be implied. Broom’s Legal Maxims, 1 Am. ed. 651.
Nor can the acceptance of the shooks by the defendants, if any were proved, be taken as a waiver on their part of their rights under the express contract. The jury were instructed that they might return a verdict for such as were delivered. It does not appear that the delivery was to the defendants in person. They were shipped to a foreign country, but by whom received, by what authority, or under what circumstances the case does not show. It does not appear that the delivery was to any one having knowledge of the terms of the contract. Besides if a waiver is claimed, whether there is such, is a question for the jury.
There is another class of cases, quite numerous, in which the plaintiff is permitted to recover under the proper common count, for services rendered, or goods furnished under a special contract. 1 Chitty on Pleading, 340. 2 Green, En. § 104. Keyes v. Stone, 5 Mass. 391. Jewett v. Weston, 11 Maine, 346. Hayden v. Madison, 7 id. 76. White v. Oliver, 36 id. 92. Veazie v. Bangor, 51 id. 509. Linningdale v. Livingston, 10 Johns. 36. Hayward v. Leonard, 7 Pick. 181. Snow v. Ware, 13 Met. 42. Gleason v. Smith, 9 Cush. 484. Bassett v. Sanborn, id. 58. Veazie v. Hosmer, 11 Gray, 396. Bee Printing Co. v. Hichborn, 4 Allen, 63. Cardell v. Bridge, 9 id. 355. Thompson v. Purcell, 10 id. 426.
Though these cases relax somewhat the rigid rule of holding the plaintiff to the exact fulfillment of his part of the contract before he can recover, yet none of them go so far as to permit him to abandon it without the consent of the other party. On the other hand, all of them hold him to it upon the question of
In Jewett v. Weston, ubi supra, in the opinion it is said ; “It came out in evidence, that the labor was performed under a special contract, and consequently, it became necessary for the plaintiffs either to show that they had performed their contract, so that nothing remained to be done on their part; or that there had been a deviation by the assent of the defendant at the time, or subsequently assented to, either expressly or impliedly, by Iiis acts. How could either of these alternatives be shown, except by the production of the special contract ? ... As soon as it came out in the evidence that the labor was performed under a special agreement, the defendant might securely rest, until the plaintiff had removed this obstacle in one or the other of the modes above suggested.”
In Champlin v. Butler, 18 Johns. 169, 173, and in Robertson v. Lynch, id. 451, it is held that the plaintiff cannot abandon the special agreement and resort to the general counts, if the goods were, in fact, sold under the special agreement. In the latter case the court remark: “A contrary rule would enable the plaintiff', in every case, by his mere volition, to convert a special contract into a general indebitatus assumpsit.”
Thus it is clear, both from the authorities, as well as upon principle, that though the plaintiff may in certain cases recover under the general counts for goods furnished under an express contract, yet in all cases the contract is the foundation of the action and the burden is upon the plaintiff to show that it has been fulfilled
In order to do this the contract is the starting point, and its existence having been shown, it must be produced, or its contents proved by competent testimony.
Exceptions sustained.