Smith v. Webster

48 N.H. 142

Opinion

Sargent, J.

We think there was evidence introduced by plaintiff competent to be submitted to the jury, tending to sustain all the material allegations in the declaration.

By the bill of sale introduced by plaintiff, the defendant sold him "one peddler’s sleigh.” Plaintiff had a right to a sleigh, and not to parts of three several sleighs, neither one of which could be used with either of the others, for it appeared that the frame which sat upon the runners was too short for the runners by one or two feet, and that both the runners and the frame were too short and too narrow for the body.

If a man buys a mowing machine, it may be sent him in different pieces or parts, but they must be such that they are capable of being put together so as to make one machine; so of a bedstead or any article of furniture which is capable of being taken in pieces and put together again. There was here no pretence of selling the separate parts of different sleighs which could never be put together so as to make one •sleigh. All the evidence tends to show that what was bought and what was sold was one sleigh. What was delivered was not one sleigh, or anything that could be put together as one sleigh, but parts of, several sleighs of different sizes and kinds which could not be put together to make the sleigh that was sold.

Is there a variance between the contract as alleged and as proved ? and is the variance material? In general a contract which is declared on as the ground of the defendant’s liability must be proved substantially as alleged ; and in a declaration alleging that the defendant promised to do certain things, the consideration on which the promise is founded must be proved as stated or the plaintiff will fail. 1 Ch. PI. sec. 298, (9th Am. Ed.) But there is a difference in the rule applied to the two sides of such a contract. Chitty states the rule (1 Ch. PI. sec. 317,) in this way: "In stating the consideration, it is in all cases absolutely necessary that the whole of the entire consideration for the performance of the act in question should be set forth, and that when the contract has consisted of several engagements and promises quite distinct from each other, but founded on one and the same entire consideration, an action cannot be brought for the breach of any one of such engagements or promises, without setting forth in- the declaration the entire consideration applicable to all the promises collectively. But,” he adds, "the rule is different in stating the defendant’s promise itself, for here the plaintiff is only required to set forth with correctness that particular part of the contract which he alleges the defendant to have broken.”

According to that rule there is no variance in this case. The consideration of the defendant’s promise was the payment of $100 cash, and that must be proved as stated, and was so proved. There is no controversy anywhere as to that. But in alleging the defendant’s promise it is only said that he promised to sell and deliver one peddler’s sleigh, and the proof is. that he promised to sell and deliver one sleigh and seven boxes of lozenges. But the plaintiff does not complain that the lozenges were not delivered according to contract, but admits that they were so, but the plaintiff has set out that part of the contract which he alleges the defendant has broken, and all for which he seeks to recover damage, and that is enough. Colburn v. Pomeroy, 44 N. H. 19, and the cases cited are to the point that the consideration moving from the plaintiff, which is set up as the ground of the defendant’s promise, must be fully stated, and must be proved as alleged, and is fully in accordance with the above rule.

Alvord v. Smith, 5 Pick. 232, is a case in point. There the plaintiff alleged that in consideration of his having transferred to defendants certain stock in a certain company, the defendants promised to pay all arrearages that then were or might become due from him to the company, and alleged a breach of this promise. On trial it was proved that in consideration of the transferring of the stock by plaintiff, defendants promised not only to pay all arrearages that then were or might become due from him to the company, but also to pay him one hundred dollars. But the court say this is no. variance, because the one hundred dollars may have been paid, at least it is not claimed in this action. In this respect such actions are like actions of covenants, where, though there may be many covenants in the deed, the plaintiff may sue for the breach of either one alone.

In Greenl. Ev. secs. 67 and 68, this distinction is clearly stated, and corresponds with the above rule.

Judgment on the verdict.