Drake v. Surget , 36 Miss. 458 ( 1858 )

HARRIS, J.,

delivered the opinion of the court.

The defendant in error instituted this suit against the plaintiff, to recover the value of one hundred and fifteen bales of cotton, stored with plaintiff, and lost by fire. The complaint contains six counts.

The two first counts purport to be founded on special contracts, entered into on the 1st September, 1854, by plaintiff in error, as warehouseman, with defendant, “for a reasonable storage and reward,” to safely and securely store and keep the cotton of defendant, “in his Irish shed or warehouse” until he should order the same to be shipped.

The third and fourth counts charge a delivery of the cotton, to be safely kept for a reasonable reward, and to be redelivered to the defendant in error, on request, and aver breaches in not safely keeping and not redelivering said cotton.

The fifth and sixth counts are for money had and received, and on an account stated.

The plaintiff in error filed a general denial; and on this issue the cause was submitted to a jury, and verdict rendered for the defendant in error, for $4404 15J.

A motion for a new trial was made on the grounds,—

1. That the court erred in the instructions given for the plaintiff.

2. In ruling out part of the deposition of Tobias Purcell.

3. The verdict was contrary to law and evidence.

4. The damages are excessive and unreasonable.

This motion was overruled. To which judgment, a bill of exceptions was taken and filed, and the cause brought to this court upon writ of error. It is assigned for error,—

1. The ruling out part of the deposition of Purcell.

2. The granting instructions asked by defendant in error.

3. The refusal of a new trial.

The first ground of error relied on is, that the court erred in ruling out that part of Purcell’s testimony, in which, in speaking of the message sent by Holmes through him to Drake, he relates Drake’s reply thereto. This was previous to the date of the contract, according to the testimony of all the witnesses except Holmes. It in no manner tends to show what the actual contract was. Even if it had been communicated to Holmes, it would not still afford any evidence that he had assented to the proposition made.

The “ 'principal fact” under consideration is, what was the contract ? This message and the reply were not contemporaneous with the contract, nor connected with it, nor were they calculated in any manner to illustrate it. They were not, therefore, admissible as part of the res gestae. If designed to contradict Holmes’s statement as to the time when the contract was made, it could not be ground of error that the reply of Drake was ruled out, because his reply to the message of Holmes, could not have more fully established that no contract was then existing, than the message which was admitted in evidence did.

Indeed, the proof was so full on this subject, that no contract was made until in October, that the defendant could not have been prejudiced by the rejection of this testimony, if it were admissible for this purpose.

The. next error relied on, is the granting instructions asked by the defendant in error.

No objection was made to the instructions at the time they were given. They are not indorsed by the clerk as given, under the statute, so as to make them a part of the record. Nor does it appear that any step was taken by plaintiff in error to reserve objections to the instructions, if any objection was made, until after the verdict of the jury, on the motion for a new trial.

Prior to the act requiring the clerk to mark all instructions asked by either party, or given by the court, as being given or refused, the party desiring to avail himself of objections to instructions, was compelled to do so by bill of exceptions, taken at the time. After the passage of that act, the party objecting might either save his objection by bill of exceptions, or by having the instruction marked by the clerk, as the statute required. But if he does neither, and makes his objection for the first time on a motion for new trial, and embodies the instructions in his bill of exceptions taken on the refusal to grant the new trial, such exceptions will only be regarded here, as an exception to the refusal to grant a new trial; and the instructions thereon recited, will not be reviewed in this court. Anderson v. Hill, 12 S. & M. 682; Field v. Weir, 28 Miss. R. 67, 68; L. Mayer & Co. v. McLure, Administratrix, Opinion Book, 457, just delivered; 4 How. 122; 9 S. & M. 34.

The last ground of error insisted on is, that the court erred in refusing a new trial.

Tbe doctrine is well established by a series of adjudications, that on a motion for a new trial, brought to this court by writ of error, the verdict of the jury will not be disturbed, unless where it is without evidence, or the evidence greatly preponderates against it, or where the verdict appears to he manifestly wrong, from the record before us. 3 How. Miss. R. 219; 4 How. Miss. R. 338 ; 7 How. Miss. R. 340; 1 S. & M. 381; 5 S. & M. 21; 7 S. & M. 715; 8 S. & M. 324, 643; 10 S. & M. 313; 12 S. & M. 336, 604, 614, 615; 13 S. & M. 202, 599, 656; 30 Miss. 387; 31 Miss. 315.

Testing the cause before us by these established rules, we think this ground of error is well taken:

1st. Because the verdict of the jury is without evidence to support the contract declared on. There are four special counts, declaring on a special contract, in each ease for storage “for a reasonable reward,” when the proof shows a special agreement to store plaintiff’s cotton in the brick shed, at twenty cents per bale. There is no count stating a special contract to store plaintiff’s cotton in the brick shed, for twenty cents per bale. And all the proof agrees that there was a special contract, and that this was the sum agreed on, as a consideration for storage. No witness proves any count in the declaration as laid; no witness sustains the contract alleged in the several counts of the complaint, — that the consideration agreed on, was “reasonable reward.”

2d. The verdict is without evidence to support the contract alleged in the complaint, in this : the contract, as stated in the first two counts, is as follows: “The defendant, in consideration that the plaintiff, at the special instance and request of the defendant, would deliver to the said defendant certain cotton of him, the said plaintiff, to be by him, the said defendant, safely and securely kept and stored in the brick shed or warehouse of him, the said defendant, in said town of Rodney, until the said plaintiff should order the same to be shipped, for reasonable storage and reward to him, the said defendant, in that behalf, to be paid by said plaintiff; he, the said defendant, undertook, and then and there promised the said plaintiff, that he would safely and securely store and keep the said cotton, so to be delivered to him as aforesaid, in his said brick shed, or warehouse, until he, the said plaintiff, should order the same to be shipped.”

The second count only varies from the above, in declaring upon a special contract, after the cotton had been delivered, stating it otherwise, in the same terms as the first count.

Besides the failure to prove the contract as laid, for “ reasonable storage or reward,” there is no witness who proves that the contract was, that the defendant should keep the cotton safely or otherwise, “ until he the said plaintiff should order the same to be shipped.”

Bice directly disproves this part of the alleged contract, and all the circumstances go strongly to corroborate his statement, in this respect; the storage was for twenty cents per bale, and not per month, and could not, therefore, be presumed to have been at the loill of plaintiff. The “ brick shed,” as the proof shows, was used to store pork, and needed for that business, and could not have been so used with plaintiff’s cotton there; besides other circumstances, tending to show the truth of Bice’s statement in this respect.

Holmes himself, however, distinctly states, that “ no time was limited as to when the cotton was to be shipped; but it was to remain in the brick shed, until plaintiff wanted to ship it.”

Again he says: “ There was no condition, or limitation in the contract, as to the time plaintiff’s cotton teas to remain in storage.” And again: “ Witness does not recollect that anything was said, in his conversation with Drake, about how long the cotton was to remain in store, nor about the brick shed being wanted by Brake for the pork season, because nothing of the hind was said.”

It seems, therefore, from Holmes’s testimony, as stated in the record, that although he supposed, or inferred, that the cotton would remain in store with Drake, until plaintiff saw fit to ship it, that yet there was no such time mentioned, no such condition or limitation agreed on; that “ nothing was said, in the conversation with Drake, about hoto long the cotton ivas to remain in store.”

“ As the plaintiff is bound to declare, on a special agreement, where there is such, he ought to prove the contract as stated in his declaration expressly as laid, or be shall be nonsuited.” 2 Tucker’s Com. 148-9, and numerous authorities cited.

Where the plaintiff declares on a special contract, and also files the common counts, if at the trial he proves a special agreement, but different from that laid in his declaration, the plaintiff cannot recover on either count. He cannot recover on the special count, because of the variance between the contract alleged and the contract proved, nor can he recover on the common counts, because there was a special contract. 1 Str. 648; Bull. N. P. 139; 6 Tenn. R. 325.

“ The doctrine here stated rests upon the sound principle, that where there is a special contract for an agreed price, the plaintiff cannot recover on the quantum, meruit, because, on that count, the measure of damages is the value of the services, which peradventure may be more than the price agreed on. Nor can he recover upon the special agreement proved, if it differ from that laid in the declaration; because the defendant would be taken by surprise, if when he is charged with having made ■ one contract, the plaintiff should be permitted, without giving him notice to prepare for his defence, to prove another. It is for this reason, among others, that the allegata et probata must agree.” 2 Tuck. Com. 149.

“ Thus also in actions upon contract, if any part of the contract proved, should vary materially from that which is stated in the pleadings, it will be fatal; for a contract is an entire thing, and indivisible.”.“ The entire consideration must be stated, and the entire act to be done, in virtue of such consideration, together with the time, manner, and circumstances ; and with all the parts of the proposition, as thus stated, the proof must agree.” 1 Greenleaf Ev. 89, 90, 91, §§ 66, 67, 68.

“ The consideration is descriptive and material, and must be strictly proved as laid.” 1 Greenleaf Ev. §§ 58, 68, and numerous cases cited in notes.

There is no evidence, in the case before us, to sustain the special contract declared on. The proof shows that there was a special contract, different from that laid in the declaration; it follows, therefore, that the plaintiff was not entitled to recover, under the pleadings and proofs in this record, and a new trial should have been awarded.

For - this eri‘or, let the judgment be reversed, cause remanded, and a venireMe novo awarded.