Harrington v. Worden , 1 Mich. 487 ( 1850 )

By the court,

Wistg, J7

The note proved to have been delivered to defendant was a ten dollar note. It is urged, the averment of the oxen and the note being given in exchange, is an immaterial averment. The test of the truth of this position, is, whether the action can be sustained without it. If we strike this out, there remains no consideration stated on the record for defendant’s undertaking, and the declaration would be bad, as no binding contract would be stated. It is said, the consideration stated that the plaintiff at the special instance and request of the defendant, would buy the mares, is a sufficient consideration for the promise of the defendant; but suppose the plaintiff had failed to buy fire mares as he had agreed to do, and the defendant had brought an action to enforce it, what would be the measure of damages 2 Nothing was' agreed' to be given for the mares;- all that the defendant in that ease would have agreed to do, was simply to buy; surely, it would be a void contract, and the court could not enforce it.

But assuming, as the parties seem to have assumed, that the consideration for the undertaking of the defendant was the Oxen and a twenty dollar note, we must hold that the averment is material for the reason we have given; and the plaintiff is bound to prove it as stated. Issue is taken upon it by the plea. Great accuracy is required in the statement of the consideration, which in an action of assumpsit forms the basis of the contract, and if any error is made in the description of it, the consequence is, the whole contract is misdescribed. Chitty’s PI. 326. If it is true, as argued- by defendant’s counsel, that it is quite immaterial what the value of the oxen was, as the defendant was to receive them; and as the consideration in this case would not furnish the rule of damages, still the description of the note would he material. The note forms a part of the entire consideration. The ten dollar note proved is not the twenty dollar pote stated in the declaration. The question is not as to its value; it is stated to have been a note of'twenty dollars, i. e. a note for the payment of twenty dollars. Then if, as shown by the proof, it was in fact a note of ten dollars, it is no more the thing described than a boot would have been: consequently, the consideration of the promise was misdescribed. It is -well settled that descriptive averments must be proved with a degree of strictness extending (as Mr. Greenleaf says) in some cases even to a literal ¡rrecision. No allegation descriptive of that which is legally essential to the claim or charge can ever be rejected. 1 Starkie’s Ev. 373. See authorities cited in I Gveenleaf’s Ev., sec. 56, p. 68.

"The description given of the note in the declaration is matter of substance : for it goes to the identity of the note. The consideration might have been sufficiently well set forth by a less particular description of it, In that case jt would not have been necessary to prove the precise amount of the note; but the particular statement of the amount has become material in this case by being inseparably connected with the essential allegations. Had the averment beep, that the sale was for a valuable consideration, to wit: for one yoke of oxen and a note for twenty.dollars, it would not have been necessary to prove with precision the items of the specification, But where, as in this case, the action is for a breach of warranty upon the sale of personal chattels, and the plaintiff has set forth the price paid for the goods without a videlicit, he is bound to prove it as alleged, it being rendered material by the form of allegation. Durston v. Tuthan, cited in 3 T. R, 67; Symmons v. Knox, 3 T. R. 65; Arnfield v. Bate, 3 Maule & Sel, 173; Stephen's Pl. 419, 420; 1 Chilty’s Pl., 348, 6th edit.

The cases in which averments were considered immaterial, cited from Cowen & Hill’s Notes 514, do not apply to this pase.

We are, therefore, of opinion that the judgment of the circuit court ímjst bp reversed, and that the case must be remanded for a new trial.

Judgment reversed, <éc,