Young v. Woodward , 44 N.H. 250 ( 1860 )

Nesmith, J.

The first question presented is, has there been a sale here, or a precedent debt created, upon which an express or implied promise can rest, and the plaintiff’s declaration sustained ? In general, where the contract is of such a nature that, where the identical thing delivered is to be restored, though in an altered form, the property is not changed, and there is no sale. Moore v. Hodand, 39 Me. 307; Mallory v. Welles, 4 Corns. 76; Gregory v. Striker, 2 Den. 628. So where, upon a declaration in general assumpsit, for goods sold and delivered, the evidence showed a consignment for the purpose of a sale, and a sale of a portion of the property, this was held to be a special bailment, and the action did not lie. Shepard v. Palmer, 6 Conn. 95; Reed v. Bertrand, 4 Wash. 514; Colman v. Price, 1 Blackf. 303. Nor is the action in this form supported by evidence of the consignment of the goods to the defendant, upon his agreement to pay for and deliver them to the owners, when requested, and of his refusal so to pay for and deliver them. Brown v. Holbrook, 4 Gray 102. The reasoning in this case stands upon the earlier decision of Shaw, C. J., in Ayers v. Sleeper, 7 Met. 45. The declaration in the latter case contained the common money counts; also one on an account stated, and another for goods sold and delivered. The evidence showed a consignment of goods, but the action was not maintained, as there had been no sale. The contract may be modified frequently by the negligence of the party to account for the proceeds of the sale in a reasonable time. Then assumpsit, with a proper declaration, will lie, as in Eaton v. Welton, 32 N. H. 352; or upon the refusal of a consignee to deliver the proceeds of sale, on demand, and converted to the defendant’s use, as in Baker v. Corey, 15 Ohio 9. In general, in this class of contracts of bailment, there should be a special count, which should set out the promise and undertaking of the defendant, the consideration on which it was founded, the brea,ch of that promise by the defendant, or his neglect or carelessness, and the loss occasioned to the plaintiff thereby. Kinnard v. Jones, 9 Gratt. 183. The same doctrine is sustained in Mitchell v. Gile, 12 N. H. 392; Wheat v. Norris, 13 N. H. 179; Meldrum v. Snow, 9 Pick. 441; Eldridge v. Benson, 7 Cush. 483; Mann v. Locke, 11 N. H. 248; Chitty on Contracts 833. See form of declaration in this class of cases, 2 Ch. PL 161, 162. In Topham v. Braddick, 1 Taunt. 571, the declaration against the defendant as consignee averred a demand of an account. The court ruled that, to support the action, the demand must be proved or presumed.

Upon the declaration as it stands, the finding of the auditor that the action can not be maintained, for the goods consigned, is doubtless correct. But there appears to be charged in the plaintiff’s account the sum of $3.40, for cloth delivered to'the defendant under date of February 5, 1857. It is understood that this charge was not made for property consigned; therefore, this actio’n may properly lie for the cloth, unless it be paid for by the defendant.

The auditor finds that the plaintiff admits two payments made by the defendant subsequent to the charge, and in amount exceeding the plaintiff’s charge for the cloth. The payments were made without any special request on the part of the defendant as to their application. Nor was there any special application made prior to this suit, and the question recurs, how will the law now make the application. Where no application has been made by the parties, the law will apply the payments to the oldest indebtedness. Livermore v. Rand, 26 N. H. 85. Another rule prevails, that in making applications of payments the principles of equity are recognized at law, so far as the nature of the proceedings will admit; Bank v. Brown, 12 N. H. 321; Thompson v. Phelan, 22 N. H. 339; or the application may be to the payment of that debt which, under all the circumstances, such as similarity in the account, character, or origin of the payment, appears to have been intended by the debtor. 11 Mass. 300; 5 Taunt. 596. Upon the strength of the aforesaid principles it would seem to be just and equitable, that if the payments, after the purchase of the cloth, were made from the funds realized by the defendant from the actual sale and proceeds of the plaintiff’s property, the money thus obtained should be applied, pro tanto, to the discharge of so much of the plaintiff’s account; on the other hand, if the payments were made from the defendant’s own private funds, then the application to be made to the discharge of the account had by the defendant in his private right. Or that the principle suggested by the court in Hilton v. Bailey, 2 N. H. 196, should prevail, that the payments be applied in discharge of such part of the plaintiff’s account as can be recovered in the suit then pending. It seems to us that this view of the facts of the case would accord with the strict principles of right and equity between the parties; and when the facts are ascertained upon the aforesaid principles before suggested, then judgment can be rendered accordingly.