Green v. Pratt ( 1836 )

Waite, J.

The only question submitted to the consideration of this court, is, whether the auditors erred in rejecting the claim of the plaintiff, with the evidence offered in support of it. Had the agreement been, that the yarn should be sold, by the plaintiff, or some third person, it would hardly be claimed, that the plaintiff could sustain an action on book against the defendants, simply to recover damages for the loss sustained in the sale of the yarn. No case has ever gone so far. The circumstance that the yarn was to be sold, by the defendants, does not vary the principle. The yarn, by the terms of the contract, was not to be sold to the defendants, but by them, upon commission. For the moneys received by them upon the sale, they were liable to the plaintiff, in an action on book. But the plaintiff could no more unite with his charges for those moneys a charge for a loss of profits founded upon the guaranty, than he could sustain an action of book debt for that loss alone. The plaintiff may have a remedy upon the guaranty of the defendants ; but it must be in a different form of action. It is a well settled principle of law, that a mere right of action, as a claim for damages for a tort or a breach of contract, cannot be charged on book.

The superior court, must, therefore, be advised, that the auditors did not err in rejecting the plaintiff’s claim ; and that the report of the auditors ought not to be set aside.

The other Judges were of the same opinion.

Judgment for defendants.