Pierson v. Spaulding

61 Mich. 90 | Mich. | 1886

Campbell, C. J.

This is an action of assumpsit begun by attachment as upon a special contract, but with a declaration merely on the common counts. A bill of particulars was demanded and filed under the statute, which dates the contract as of June 17, 1885, and is:

“ To the price and value of a stock of hardware, tinners’ tools, and fixtures, sold and delivered by plaintiff to defendant at his request, - - $4,500

“ To interest on the same,.....300

$4,800”

.The attachment was sued out immediately after the alleged sale, and levied on the same property. Defendant pleaded the 'general issue, and also, by notice, that the alleged contract was a written contract, copied in the notice, and that plaintiff did not live up to his own agreement in several particulars set forth.

The agreement, dated May 25,1885, was substantially as follows : Plaintiff was to sell to defendant his stock of hardware, tinners’ tools, and store fixtures in his-store at Three Rivers, reserving whatever it should inventory beyond $4,500, which excess plaintiff was to take in hardware. Defendant was to pay $4,500 as follows : Three thousand by conveyance of a specified farm of 63 acres, and the balance in cash —all to be done when the inventory should be completed. Plaintiff was to have one-fourth of the hay and corn then on the ground, and defendant three-fourths. The inventory Avas to be made and delivered on June 1, 1885, and deed and payment to be mtrde the same day. Nothing Avas provided concerning the basis of the inventory, which could only be made, therefore, upon some agreed standard of prices.

There was a conflict concerning the fairness of the inventory, and concerning the custody of the goods. The inventory was not completed until 'several days after it should have been, and several matters of contention appear to have arisen. The defendant refused to perform, and did not convey the land. Shortly before the suit was begun, he conveyed it to another person.

In our view, this suit could not be based on the common counts. The contract Avas a special one, and did not rest on \ a money price. The fact that the land was to be conveyed ' for $3,000 of the inventory price does not indicate that the inventory or land were priced at their cash value. The sale ^ was one in part for cash, and in part for a specific thing. A '' breach of the contract must be measured in damages by the amount of injury done, which Avould involve an inquiry into \ the actual and not the nominal value of the land. There was also to be deducted from the land three-fourths of the groAving crops. There is no propriety in treating this as a' sale on a money basis.

The authorities which allow suit under the common counts for what is due on a contract performed on the plaintiff’s part coniine the recovery to money due. It does not reach to anything else. Our own decisions cover the case, and therefore we shall not look elsewhere. Special contracts must be sued on specially, if relied on for recovery, with that single-exception: Begole v. McKenzie, 26 Mich. 470-5, and notes; Butterfield v. Seligman, 17 Mich. 98. See, also, 1 Chit. Pl. 298. In order to sustain the action here under the common counts by aid of the special contract, it should have involved a promise to pay money for the goods in default of the land. The contract is the only possible basis of recovery here, and it makes the land the only consideration for the greater part of the goods. (See note.)

There are some other objections which would be worth considering if this were not fundamental, but we so regard it on this record.

The judgment must be reversed, with costs, and a new trial granted.

The other Justices concurred.

Note. — Where a plaintiff has delivered a portion of the articles agreed to be furnished to a defendant under a written contract at a price specified therein, and makes default in its further performance, he may recover the value of the articles so delivered under a common-count declaration, subject to recoupment by defendant of the damages sustained by reason of such non-performance.

In such a case proof of the contract and of the delivery of the articles charged for makes plaintiff’s case, and .the contract price of the articles so delivered must be regarded as their value until the contrary appears. Gage v. Meyers, 59 Mich. 300.

“An action will lie under the common counts for a sum agreed .upon as due, if based upon a lawful consideration.” Miner v. O'Harrow, 60 Mich. 91.