30 N.H. 511 | Superior Court of New Hampshire | 1855
This action was assumpsit upon an account annexed to the writ. The count was in the usual form, in which it was alleged that the defendant, on the day of the purchase of the writ, was indebted to the plaintiff in a specified sum, according to the account annexed to it. It is contended that a recovery cannot be had in this action, under that count, for the ten sets of military horse equipments delivered in the fall of 1847, and which are included in the item for thirty such equipments, under date of 1848. The date of the charge is certainly not material to the substance of the claim. In order to recover an item of charge for goods sold and delivered, it cannot be necessary to give exact evidence of the precise day, month or year of the sale. That would be nearly, if not quite, impracticable in many cases. A party, in giving evidence in support of his book of accounts, is required to state only that the articles charged were delivered at or about the time when the account purports that they were delivered. And such evidence is sufficient alone in support of such charges, and a recovery may be had accordingly. But if it must appear that the goods were delivered precisely at the day when the charge in the account annexed to the writ bears date, it is clear that the evidence usually given in support of such charges would
Practically, the dates prefixed to the itelns of the account attached to the writ, are not correct. They bear date prior to the commencement of the action, usually. Many times, items of account are put on paper for the first time when the account is made out to be annexed to the writ, and dates are prefixed to them according to the best recollection of the party. But no one, we venture to say, was ever turned out of court for inaccuracy in the date merely, provided it appeared that the indebtedness accrued at any time before the commencement of the action.
What is material to be proved is of course material to be alleged, and that only. And what is material to be alleged is usually material to be proved as alleged. The substance of a declaration is to be proved. The evidence need not usually go farther.
What are the substantive allegations in a declaration like the present?
It is, in legal effect, an action for goods sold and delivered. The sale and delivery are the material allegations in such a declaration. Bo here the sale and delivery of the goods are the material allegations, and the time is immaterial, if it be only prior to the action.
It is not material that any dates should be prefixed to the items in the account, showing or pointing out their dates. It would be no objection to a recovery, that there should be an omission of their dates altogether. If so, they need not be proved.
In this view, of the question, we do not think it necessary to consider the effect of the transaction involved in the charge of the court respecting the sending of the bill by the plaintiffs, in May, 1848, and its reception, without objection, by the defendant. It is enough that the fact of the delivery, in the fall of 1847, will form no objection to a re
The interest upon the value of the ten sets was clearly recoverable, from a period as early as June 8, 1848. They were delivered in the fall of 1847, and were to have been paid for, by sending the money on receipt of the goods. The direction or order for the ten sets was as follows, namely : “ If you will send eight or ten sets of horse equipments, for $55, which you thought when I was there, we will send the, money back for them.” This is a plain engagement to pay for the goods on receipt of them, by returning the money for them at that* time. The language used admits of no other fair interpretation. Interest is recoverable from the time when the payment is to be made according to the agreements of the parties, by way of damages for the detention of it. This view of the law upon the subject of the interest, disposes of the first branch of the instructions respecting the interest upon the twenty sets of equipments delivered in May, 1848, viz: that interest was recoverable thereon from the agreed time of payment, provided any such time was fixed. And it is not now an open question that interest is recoverable upon a claim of this kind, from the time of demand of payment, provided no time of payment be fixed.
We see no ground for disturbing the verdict in this case, and consequently there must be
Judgment on the verdict.
