Smith v. Barker

22 F. Cas. 454, 3 Day 312

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: April 15, 1809
• Status: Published

Opinion

LIVINGSTON, Circuit Justice.

It is the opinion of the court that the consideration alleged is so different from the one proved that we cannot let it go to the jury. The consideration alleged is the building of a ship. The consideration proved is the finishing of the ship Eliza, already built in part, and the selling it to the defendant. Every one knows that to build a ship for another is an essentially different thing from finishing one partly built, or selling one finished. This ship was Smith’s, while she was building, till she was finished, and till she was sold and delivered. Without deciding any other points which have been made,² we are of opinion that none of the proof offered with respect to the contract in this case can go to the jury.

The plaintiff then moved to amend. This was objected to on the part of the defendant, on the ground that it was too late.

THE COURT said that the plaintiff could amend in any stage of the trial if the case had not been actually committed to the jury.

The declaration -was accordingly amended by inserting and declaring upon the contract above recited. Then there was inserted a letter from the defendant to the plaintiff, dated November 21, 1805, in which the defendant concludes to take the whole ship, and introduces a Captain Waterman as his agent, to superintend the finishing of the ship. Then it was averred that Waterman did superintend the finishing and rigging of the ship; and that the defendant, on the 8th day of February, 1800, in pursuance of the contract, executed the note on which, etc. The plaintiff then introduced an averment that he finished the ship in all respects as specified, sold her to the defendant on the 30th of April, 1806, and delivered her with a bill of sale to Waterman, as the agent of the defendant; that Waterman received the ship, and made an in-dorsement upon the contract in the following words: “Received the ship of Captain Nathan Smith, agreeable to the within contract; and I, as attorney to Jacob Barker, do discharge said Smith from all demands that said Barker has by law or equity, for not delivering her before; as witness my hand this 30th day of April, 1806. D. Waterman, attorney for J. Barker.”

The plaintiff then averred that by said writing of the 8th of February, 1806, the defendant assumed and promised to pay the plaintiff, or his order, five hundred dollars, as soon as that amount should become due by said contract; and that on the 30th of April, 1806, said sum was due from the defendant to the plaintiff by said contract, and by the completion, delivery, and sale of said ship.

After the declaration had been thus amended, it was agreed by the counsel to submit the ease to the same jury who had heard the evidence adduced in the former stage of the trial.

LIVINGSTON, Circuit Justice, in his charge to the jury said that the contract now stated in the declaration was that Smith should finish the ship Eliza in a workmanlike manner, and sell her to Barker in about one month. The defendant had objected that this contract was not complied with, because the ship was not built in a workmanlike manner. Little proof had been adduced by the defendant to this point, and he considered it as not much insisted on by his counsel. As to the time, it was proved that the ship was not delivered till after six months had elapsed. Nobody could consider this as the fulfillment of a contract to deliver in about one month. But it was insisted for the plaintiff that whatever breach of contract there has been on his part, all advantage to be derived from it had been waived expressly by the defendant. But this note was to become payable when the sum of five hundred dolíais should become due on the contract. If the contract was not complied with, this note could not have become due. The court were decidedly of opinion that If Barker had expressly waived all exceptions arising from want of fulfillment of the contract by writing under hand and seal, yet this note would never have become due.

The plaintiff thereupon suffered a nonsuit.

NOTE. Amendment of Declaration, when Allowed. Amendments at any stage are within the discretion of the court. Tiernan v. Woodruff [Case No. 14,027], approving above case.

Variance between Allegation and Proof. See Stone v. Lawrence [Id. 13,484], citing case in text.

2 Several other points of law were made by counsel in the course of the trial; but as no decision was had upon them, it was not thought best to state them particularly in this report of the case.