Putnam v. Kingsbury , 33 Mass. 371 ( 1835 )

Shaw C. J.

delivered the opinion of the Court. The gist cf this action is tort. The form of the action is case, and .he whole frame and structure of the declaration is founded on suggestions of negligence and carelessness, and the improper and unreasonable use of the building, it being sufficiently strong and firm, for use as a grain store. It is important, that the different forms of actions, should be so far preserved, as that the declaration shall give the defendant reasonable notice of the real case intended to be proved. It perhaps would be practicable to frame a good declaration in case, on the facts relied upon by the plaintiff; as, that the store was weak and slightly built, not designed as a store for grain, that the defendant knew it, that it was hired to store a small quantity of grain &c., and he unreasonably put into it, a considerable quantity &c., by means of which it was crushed anc* destroyed. But on the declaration, as it stands, in pursuance of the rule that the probata and the allegata must conform, it was incumbent on the plaintiff to prove, that the store was of sufficient strength and firmness to bear a reasonable quantity of grain, that it was let for that purpose, and that the defendant, through negligence, carelessness and imprudence, loaded it with an unreasonable quantity and weight of grain, by which it was crushed ; and of this the proof failed. The Court are strongly inclined to the opinion, that the proof of an express promise, on the part of the defendant, to take the risk of putting in a certain quantity, though not an excessive or unreasonable quantity, and to be responsible for the consequences, was not competent and admissible, if objected to, which does not distinctly appear; but though it might be admissible for some purposes, the Court are of opinion, that the instruction to the jury, that upon proof of such promise this action could be maintained, was incorrect, for the reason, that, although it might afford the plaintiff a remedy in another form of action, it had no tendency to maintain the issue joined in this ; and upon this ground it was reserved. The verdict must be set aside, and a new trial granted