Moore v. Ross

7 N.H. 528

• Court: Superior Court of New Hampshire
• Decided: July 15, 1835
• Status: Published

Opinion

Parker, J.

It is objected that the evidence in this case will not support ail action of indebitatus assumpsit for work and labor performed, and grain sold. This objection is tech-nica!, but it must prevail.

The work and labor were performed/and the grain was furnished, iinder a special contract to sow the land upon shares, as it is termed. The labor was. performed, and the material found, by the plaintiff, for himself, in accomplishing whát he had undertaken to do, in consideration of an agreement that he should receive a portion of the crop.. If tiiat contract had. been fully executed, no duty would have arisen oil the part of the defendant, to pay the plaintiff for the: grain and labor. Of course he was not laboring for the dm fendant,. although the. work was performed on the defendant’s land, and although the. defendant, had an interest in the result. , . • . ■

The- defendant found land, the plaintiff- labor and materials, and they were to share in the produce. The plaintiff, then, haying performed the labor, and sown - the seed, had an interest in the expected crop, but no claim against the defendant for ..any-thing which had been done. The parr ties put an end to: this interest by mutual agreement, and we must look to that agreement for their rig’hts and liabilities. That agreement was, in substance, that in consideration the plaintiff would sell his interest in the. crop, the. defendant would purchase it, and pay for it. the value, of the grain, and of the labor expended in sowing it; or, according to the language of the parties, that he would pay the plaintiff for what had been done in sowing the grain. It put an end -to any farther rights, under-the first agreement, by substituting another ; and the injury which the . plaintiff has sustained is by reason of the non-performance, of. this last contract. As his right of action arises, from the breach of this contract, the declaration, whether the count be, general or special, should be founded upon it. -

The plaintiff by the agreement parted with what belonged to him, that is, his interest in the expected crop; but the agreement did not, and could not, make the grain, and the labor of sowing it, grain sold and labor performed for the defendant at his request. The value of the grain and labor was to be the measure of compensation for the interest in the crop sold to the defendant.

The agreement to pay, then, was not, in fact, in consideration that the defendant was indebted to the plaintiff for work and labor which had been performed for the defendant, and grain furnished him, at his request, but in consideration that the plaintiff gave up his right under the former contract ; and this surrender of his interest should have been stated as the consideration upon which the defendant agreed to pay the value of the grain and labor.

in stating the consideration of a contract not under seal, it must be set forth truly, and proved as laid. Ante 333, Favor vs. Philbrick; 1 Chitty's Pl. 295; 3 Day's Rep. 312, Smith vs. Barker; 3 Caines' Rep. 288, Lansing vs. McKillip; 6 East 568, Clarke vs. Gray; 8 East 9, Miles vs. Sheward; Cro. Eliz. 79, King vs. Robinson.

The declaration states substantially that the plaintiff was indebted to the defendant for grain furnished, and labor performed for him, at his special request, and in consideration thereof promised to pay, &,c. ; but the defendant’s promise not having been made upon any such consideration, the proof did not sustain the allegation.

The cases cited by the plaintiff’s counsel show, that where goods have been sold, or labor performed for the defendant, upon a special contract, and the contract has been rescinded, or executed, resort may be had to a count in inde-bitatus assumpsit. But they are distinguished from the present case, for the reason that here the labor was not performed for the defendant, nor the grain sold or delivered to him. The performance of the original contract in this case could have given the plaintiff no claim against the defendant for work and labor, or grain, and that contract was rescinded only by the substitution of another, founded upon a new consideration. The plaintiff must of course rely upon the new contract alone, and, as that is not correctly set forth in the declaration, the verdict must be set aside and a

New trial granted.