Shepard v. Palmer , 6 Conn. 95 ( 1826 )

Daggett, J.

The fourth count of the declaration, which is for goods sold and delivered, cannot be supported; for whatever may be proved, by the testimony of Willard, on whose testimony the cause was decided, it did not prove, nor tend to prove, a sale of the staves and heading, by the plaintiff, to the defendant. Indeed, it is not now urged, that the verdict can be supported on this count.

The fifth count is for money had and received. There is no pretence, that the defendant has received any money. Now, to sustain this count, it must have appeared, that the defendant had actually received money, or that which was equivalent to it. Bank notes circulating as cash, and, according to some decisions in the English courts, negotiable paper, may be considered as money for this purpose. A set-off of a debt due by the defendant, may be deemed a receipt of money to that amount. Ward v. Evans, 2 Ld. Raym. 928. But I am not satisfied, that there is any principle or precedent, which will sustain a verdict on this count, when it is so far from being true, that the defendant has received any money for these staves and heading, that it is not pretended that R. & L. Parsons & Co., who purchased them, have paid to the defendant the price agreed on, or any part of the debt due the defendant, which, with the amount of the staves and heading, was included in the note mentioned.

By the third count, it appears, that a deduction was to be made from the plaintiff’s demand, of freight; but the court instructed the jury, that under the circumstances, no deduction ought to be made ; and this was doubtless correct; for the defendant, according to the testimony, was to be paid his freight by Willard. The proof, therefore, did not support this count.

The testimony shews an express promise, on the part of the defendant, to the plaintiff, that he would deliver the staves and heading to R. & L. Parsons & Co., receive their note at 90 days at the Phoenix Bank, procure it discounted at the bank, and transmit the balance, having deducted the freight, to the agent of the plaintiff. It is very clear, that neither of the promises alleged in the first and second counts, is proved by the testimony, but a different one. Here, then, is a fatal variance. The rule on this point is too familiar, and has been too often recognized, to require discussion or illustration. Bulkley & al. 2 Landon & al. 2 Conn. Rep. 404. A promise to procure a note, cause it to be discounted, and remit the amount, deducting freight, is obviously variant from a promise to pay the whole amount of the note, as alleged in the first count; and equally so from a promise to obtain a note for the price of the staves and heading, and deliver the same to the plaintiff as averred in the second count. It is, then, not easy to see how this verdict can be supported, on either of the counts in the declaration.

It is also to be observed, that the plaintiff cannot, in this case, resort to an implied contract; for an express contract existed, and is proved. This express contract is neither executed nor rescinded; and the plaintiff, therefore, must resort to it as his remedy. Vandenheuvel v. Storrs, 3 Conn. Rep. 203. and the numerous cases there cited, are authorities full to that point.

If it be said, that the plaintiff may deny the power of Willard to bind him, and therefore consider the defendant as having disposed of his property without authority, it is very clear, that he cannot recover on the special contract; for if he affirms the acts of Willard, he must affirm them in whole : he cannot abandon part, and confirm the rest.

I would, therefore, grant a new trial..

The motion states an objection to the testimony of Willard, on the ground of interest. This was, very properly, abandoned in argument. Doubtless he was a competent witness, acting in the character of agent.

The other Judges were of the same opinion.

New trial to be granted.