Streeter v. Sumner

19 N.H. 516

• Court: Superior Court of New Hampshire
• Decided: July 15, 1849
• Status: Published

Opinion

Woods, J.

The principal question, in this case, relates to the sufficiency of the form of the remedy adopted. The action is assumpsit on an account annexed to the writ, containing eleven items of work and labor done and goods sold to the defendants. The claim, by the plain admission of the plaintiff and the report of the auditors, arose out of a special contract between the parties to the action, and is for services rendered and materials found in pursuance of it.

The contract was, in substance, that if the plaintiff would move to a certain piece of the defendants’ land, and remain upon it five or six years, he should lose nothing thereby,but should be made whole, and if the defendants did not put the land to him so that he should be willing to take it, they would pay him all that he should make the land better. More briefly, it was a contract that if the plaintiff would move to the defendants’ land, and remain upon it five or six years, he should lose nothing, but be made whole, and the defendants would pay the plaintiff the value of any betterments he might make upon the premises, provided he did not purchase the land at a price to be proposed by the defendants.

Such being the contract, was it necessary to declare upon it specially, or was the general count sufficient ? The rule is, that where the plaintiff’s claim does not sound in damages, but is for a definite fixed sum, the general count is sufficient. As where one party agrees to do certain work, and the other agrees to pay a certain sum of money, and when the work is done the latter refused to pay the money; in such case, a debt has accrued, and nothing remains but to pay the sum of money fixed and ascertained by the terms of the contract, to be paid upon the completion of the work.

But where the goods are sold or labor performed, to be paid for wholly or in part otherwise than in money, the contract still remaining open and unrescinded, as a general rule the action for the breach of it must be upon the special agreement. Hard's Case, 1 Salk. 23.

Perhaps on principle and in analogy to the case in which the payment is to be in money and the sum ascertained, if the payment be to be made in something other than money, but at a rate and price fixed by the terms of the contract, in such case the general count would be sufficient. Such was the case in Forsaith v. Jervis, 1 Stark Rep. 437, at nisi prius.

In the present case, the plaintiff performed, certain labor and furnished certain materials in making improvements upon the defendants’ land, and the same were to have been paid for in money; but the amount of money was not fixed by the contract, but was to be determined by the value of the improvements. It was, in fact, not a contract or agreement on the part of the defendants to pay the plaintiff for his labor and materials at any price, except the value of the improvements which should be made by means of such labor and materials.

There was, moreover, a condition annexed to this, that the plaintiff should not take the land at a price to be set by the defendants.

Every thing regarding the compensation which this plaintiff was to receive for his labor and materials was left, by the terms of the contract, open and uncertain. Whether he should receive any thing at all, depended upon whether he made the farm better, and whether or not he should purchase it, and there is nothing in the general count to show how either of these facts were.

For these causes we are of opinion that the action, in its present form, cannot be maintained.

Judgment for the defendants.