18 Johns. 451 | N.Y. Sup. Ct. | 1821
On comparing the special counts with the contract, as proved, we think that the objection as to variance was well founded. The only proof of the terms of the contract is to be found in the letters of the defendant of the 15th of November, and 7th of December, 1817, in which he offers to manufacture the plaintiff’s wool into sattinets, for 63 cents per yard, and to deliver the sattinets to the plaintiff in New-York, early the next spring; and it appears that in consequence of those letters, the plaintiff sent the wool to the defendant in December, 1817; thereby signifying, that be ae-ceeded to the defendant’s offer. The question then is, whether the proposed agreement stated in those letters, corresponds with either of the counts. The special counts both charge, that in consideration that the plaintiff had delivered
The first count states a contract to manufacture the wool, and to deliver the sattinets to the plaintiff “ early the next spring, or as soon after as the same could be manufactured, or when he, the defendant, should be thereto afterwards requested,'1'' without specifying where they were to be delivered. The contract proved, was to deliver the sattinets to the plaintiff “ early the next spring,’’ at the city of New-York. The second count also charges, that the defendant engaged to deliver the sattinets to the plaintiff “ early the next spring, or when thereto afterwards requestedThere appears to be a variance as to the time and place of delivery of the satti-nets ; and the counts charge an agreement to manufacturo wool which had been delivered before -any contract was made ; and the agreement proved, is to manufacture wool which the plaintiff should thereafter furnish. In all these essential particulars, there is a variance, which ought to defeat a recovery on the special counts. The whole case clearly shows, that a special agreement did exist in regard to manufacturing the wool for the plaintiff, who was to receive the avails, not in money, but in sattinets, upon paying ^sixty-three cents per yard. ^ That agreement was partly executed, and had never been waived nor abandoned; and because the plaintiff has made a mistake in declaring according to the real contract, there is no reason why he should be permitted to resort to his general counts. The whole evidence entirely contradicts the idea of a general sale of the wool to the defendant. Where there is a count on a special agreement, coupled with a general count for goods sold, the plaintiff may, undoubtedly, abandon his special count, even after he has attempted to prove it and failed ; and may then resort to his general count. But this can only be done where the proof is adapted to the general count. It can never be allowed, where the goods were, in truth, delivered under a special agreement, as in this case; and, where the plaintiff might, beyond all question, sustain a proper count on the special agreement. A contrary rule would enable the plain
This view of the case renders it unnecessary to consider the other questions which arose at the trial. We are inclined to think, however, that none of the other objections are well founded. But, on the ground of variance, we are of opinion, that there ought to be a new trial, with costs to abide the event.
New trial granted.
