Ranlett v. Moore

21 N.H. 336 | Superior Court of New Hampshire | 1850

Bell, J.

The account in suit in this case is divisible into two parts; the first, including the charges to September 24, amounting* to $6.32 ; the second, the charges arising afteri that date. The first portion of $6.32, was a claim for services rendered generally on credit, without any special agreement at the time, as to the manner of payment; and for these charges the action is well brought in the usual form upon an account annexed, and is well maintained upon the evidence, unless the agreement relied upon by the defendant to take his pay in goods, at Barnes’s store, is a good defence. Such an agreement is available as a defence, only as an accord and satisfaction. The satisfaction is the material point of such a defence, and there is here no pretence of any satisfaction, unless upon the statement of facts made by the auditor it is to he understood that the plaintiff, at the request of the defendant, in March, 1847, -accepted the promise of Eames to pay the defendant’s debt in goods out of his store, and thereupon discharged the defendant from further liability upon that debt. Such might have been the intention ; but we are led to doubt whether this was the fact, from the circumstances accompanying and following the transaction. No balance was struck between these parties, so that either they or Eames could know for how much Eames became responsible. No credit was given by the plaintiff on his book to the defendant for what Eames was to pay or by Eames to the plaintiff. No discharge was given to the defendant, and no distinct agreement made that he should be discharged. In short, no one of those things was done which we should expect to be done, if the agreement had been as the defendant alleges. The accounts of all parties stood as before, and they continued to deal as before. Erom these circumstances we infer, that here was an accord as to a particular mode of payment, and that it remained to be executed as the plaintiff should need the goods, but was never carried into effect. Upon this view of the facts stated by the auditor, the plaintiff is entitled to recover this part of the account declared on. The residue of the account stands on different grounds. This accrued after the special agreement of the first of October, 1846, by which the plaintiff agreed to do blacksmith work for the defendant, and to take his pay in goods from the stores. Though the account to March 23d, was included in the negotiations between the parties and Eames, yet there is nothing in the report which tends to show that the contract to do the blacksmith work for pay from the store was ended at that time, or at any time before the last service charged. To the recovery of all these items upon the general count adopted in this case, there is the objection made by the defendant, that the declaration should have been special.

The cases.decided in this State, cited by the defendant, settle the principle, that where there is a special agreement to pay for goods or services performed, in specific articles or in any other way than in money, the declaration must be special. This case falls clearly within that class. And we think, that on this ground the plaintiff cannot recover this portion of his claim.

Judgment on the report, for six dollars and thirty-two cents.