Smith v. Wheeler

29 N.H. 334

• Court: Superior Court of New Hampshire
• Decided: December 15, 1854
• Status: Published

Opinion

Woods, J.

In the view which we have taken of the case, it is not material to consider the question made and discussed by the counsel for the defendant, as to the form of the action.

The contract of January 31st, 1852, is relied upon by the plaintiff to show the sale and delivery of the goods, wffiich constitute the ground of the plaintiff’s action. Whether that contract furnishes evidence of anything more than a bargain and sale, without, in fact, showing a delivery, we need not now stop to inquire, since no such question is made by the parties.

In support of the nonsuit, it is argued that the evidence offered by the plaintiff fails to prove the consideration for the alleged promise, as laid in the declaration.

It is not pretended that the evidence offered shows that the receipt of money, or of other things as money, to the use of the plaintiff, was the consideration for any promise of the defendant averred and relied upon in this case.

There can, then, be no pretence of any right to recover upon the count for money had and received. The other two counts in the declaration are substantially alike ; both being for goods sold and delivered by the plaintiff to the defendant before the commencement of the action.

The proof given in support of the allegation of the sale and delivery of the goods by the plaintiff to the defendant is written evidence, and is to be construed, and its meaning and purport determined by the court. The language of the contract mainly relied upon by the plaintiff is thus : “ John B. Wheeler bought of S. S. Moulton, as mortgager, and Dr. Joseph H. Smith, as mortgagee, the stock, furniture and fixtures, &c., &c., for the sum of seven hundred and eighty dollars. The above is the balance this day agreed on by the parties, and the price at which said Wheeler is to take and pay for the said stock, furniture and fixtures, and said Moulton and Smith have agreed to take and receive the same in full for said stock, furniture and fixtures.” The other written evidence does not vary or control the construction of this. This contract was signed by the plaintiff, and Moulton, and the defendant. The sale, then, was of the entire interest of both Moulton and Smith, and the sum to be paid was an entire sum for that entire interest, and not several sums, for the several interest of each. Such was the express contract. This was plainly a sale by Smith and Moulton to the defendant, and not a sale by Smith alone ; and this view is confirmed by the state of the title to the property at the date of the sale. Smith and Moulton had each an interest in the property, and in order to vest in the defendant a perfect and indefeasible title, it was necessary that each should convey his interest. From the character and terms of the contract, it is no more to be understood that the mortgagee’s interest was intended to be conveyed, than that the mortgager’s was so intended to be conveyed. According to the express language of the bill of sale, the defendant purchased of both Smith and Moulton, and, of course, both are to be considered as having sold to him, and there was, as we have seen, a necessity for a sale by both. This view of the contract of January 31st, 1852, is further confirmed by the language of that of November 29,1851, to which reference is made by the former, and in which Moulton and Smith are expressly set up as the party “ of the first part,” and Wheeler as the party “ of the second part.” The sale was no more made by Smith than by Moulton; it was made by both, and not by either alone. While, then, it is alleged in the declaration, in legal effect, that Smith alone sold and delivered the goods to the defendant, which sale and delivery constitute the consideration upon which the alleged promise arose, and by which alone it is to be sustained, the written proof shows that no such sale was made, and, of course, that no such consideration as is alleged existed, by which the promise can be supported.

There is, then, a variance between the allegations and the proofs in relation to the consideration for the alleged promise. But it is a well established rule of law, that in declaring in assumpsit upon a contract not under seal, the consideration must be truly stated, and proved as laid. Moor v. Ross, 7 N. H. Rep. 528; 1 Chit. Pl. 297, (8th Am. Ed.;) Ib. 296; White v. Wilson, 2 B. & Puller, 116; Philbrick v. Favor, 7 N. H. Rep. 326; Smith v. Barker, 3 Day, 312. We are not aware that the rule thus stated has any exceptions.

It is apparent, then, that the evidence offered and received at the trial, and in relation to the admissibility of which no question was made, was wholly insufficient to prove the consideration as alleged. It proved another and a different consideration. And it cannot be pretended that t]re evidence which was offered and rejected, would have supplied the deficiency of the other evidence in the particular specified, it having no relation to the consideration, but only to the person in whose favor the promise was made; and to whom it was to be performed. It related to the promise only. Whether the parol evidence of the promise offered by the defendant, and rejected by the court, was competent for the purpose for which it was offered or not, is immaterial in the present state of the case. Its rejection cannot in any point of view be regarded as a legitimate ground for setting aside the nonsuit and granting a new trial. If it had been admitted, the result must have been the same; for, as we have seen, it had no relation to the consideration of the contract; and without competent proof of the consideration, as alleged, the want, or the rejection of evidence touching the promise only, could not be the occasion of any prejudice to the plaintiff. The admission of the rejected evidence could not have varied the result. We do not therefore propose to discuss the question arising upon the ruling by which it was rejected. We are, upon the whole, clearly of the opinion that there must be,

Judgment upon the nonsuit>