Kidder v. Flagg , 28 Me. 477 ( 1848 )

Whitman C. J.

— According to the report of the case the verdict was found for the plaintiff on the fifth count in the writ. That count is on a special contract. It avers, that on the first day of October, 1846, the plaintiff delivered to the defendant fifty-nine casks of starch, to be forwarded to the consignee of the plaintiff in Boston, which the defendant agreed to forward by the first vessel sailing, thereafter, for that place from Augusta; and for breach of the contract it is alleged, that, from said first day of October, till the twenty-seventh day of November following, the defendant neglected to forward the same; and that the starch was then put on board of a vessel call the Zephyr, which, on its passage from Augusta, was, with the cargo on board, totally lost; and that other vessels sailed from Augusta to Boston after the said first of October and prior to the sailing of the Zephyr.

It is quite a familiar principle of law, that a contract must be proved as sot forth. Yet it was not pretended at the trial that it was proved, that any starch had been delivered on said first day of October by the plaintiff, or any one in his behalf, to the defendant. All the evidence of any delivery of starch was, that fifty-nine casks were forwarded, by the plaintiff to the defendant, in small parcels, of from four to six casks each, on different days, from Oct. 23d to the 21st of November following, when the last parcel was delivered. And the first direction of which there was any evidence to ship the starch to Boston, was contained in a letter from the plaintiff to the defendant, under date of Nov. 3, 1846. In it the plaintiff merely expresses a wish to have the starch sent to Boston as soon as there might be an opportunity; and concludes by saying, “ I shall have fifty casks in all at your place in the course of ten days, which I want sent as soon as it arrives.” “ It,” here would seem to refer to the fifty casks; and hence the defendant would not be liable to the imputation of negligence, if, before shipping any to Boston, he had waited till the fifty casks had arrived. By whom this letter was sent, or when it reached the defendant, does not appear. When the last parcel was sent, on the 21st of November, it was accompanied with a letter, in which the plaintiff directed, that it should be “ put on board, with the rest” of his starch, for his consignee in Boston. Thus, the first letter, and this clause in the second, indicate a wish to have the several parcels sent together to the consignee. Yet in the last he, in conclusion, requests to be informed how much starch had been shipped, and by what vessels as he wished to draw on his consignee in anticipation of the avails from sales. This proof has no tendency to establish the contract set forth. The contention on the part of the plaintiff now is, that the defendant was bound to have shipped the parcels as they were received as soon after receiving them as might be practicable. The contract set out in the fifth count, is to no such effect; and the breach set out is, that the defendant did not send the fifty-nine casks as soon after the said first of October as might have been practicable.

The evidence therefore, in reference to any contract, and the supposed breach thereof was altogether variant from what is found to be set out in the count relied upon; and therefore a new trial must be granted, the verdict not being warranted by the evidence.