Haskell v. Brewer

Parris, J.

at a subsequent term, delivered the opinion of the Court.

There is no suggestion that the defendant knew, at the time of making the tender, that a writ had been issued against him; — and from the written evidence in the case, particularly the deposition of Rogers, it is apparent that, at the time of the tender, .the plaintiff had not performed all that he deemed to be necessary to give him a right of action. Subsequent to the making of the writ and the tender, he delivered the timber, on which the freight is charged; and it was not until after this delivery that he manifested any intention to have his writ served. Suppose that, apprehending the necessity of a suit, he had purchased his writ before his arrival at Rohbinston, or previous to his departure from Newburyport, would it be contended that this was such a commencement of the action as would deprive the defendant of the right to tender payment of the freight without including the cost of the writ, at any time previous to the delivery of the timber ? We think not. Under such circumstances, at common law, the defendant might have tendered the amount actually due and such tender would have been good, notwithstanding nothing had been tendered for the cost of the writ.

The case of Jewett v. Felker, cited for the plaintiff, is altogether different. There, the defendant was a mortgagor. His right of redeeming had been sold on execution. The purchaser, forthwith, brought his writ of entry to obtain possession; and afterwards, and within the year, the defendant tendered to the demandant the purchase money and interest, pursuant to the statute ; but did not offer to pay the costs of the suit. It was holden that the tender was no bar to the action. The action was pending in Court, and, by the common law, no available tender could then be made; nor could any be made under the statute, unless it included all costs up to the time of such tender. The question which arises here, as to the commencement of the suit, was not considered or presented in Jewett v. Felker.

The case of Johnson v. Farwell, does not support the position taken for the plaintiff, that the time of making the writ is, in all cases, to be considered the commencement of the suit. A writ may be made, to be used or not, as circumstances may thereafter require. It may be filled up and kept in the plaintiff’s pocket for months without any determination on his part to have it served. The purchase of a writ is presumptive evidence of an intention to effect a service, but this presumption may be rebutted by the facts in the case; — as if it was purchased before the cause of action arose, or service was delayed until the occurrence of an event upon which the plaintiff’s decision, as to effecting a service, depended. In such cases, according to Johnson v. Farwell, and the authorities there cited, the action would not be considered as commenced until there was a bona fide intention of having the writ served. This seems to be in accordance with the whole current of authorities in New York. In the case at bar, the tender, which the jury hare found was sufficient, was made previous to the delivery of the timber, and while the plaintiff was claiming to hold it as security for the freight. When made, no intimation was given by the plaintiff that he had purchased a writ, or that he claimed any thing as legal costs arising from the commencement of a suit, or that he intended to resort to any other method than the one he was pursuing, viz. to hold the timber for the freight. The conduct of the plaintiff was such as to induce the defendant to believe that the refusal to accept the amount tendered was solely on account of its insufficiency to pay the debt; — and if, previous to this, he had actually purchased a writ with an intention to have it served, still his concealing the fact from the defendant, and by his conduct inducing a belief that nothing was claimed as costs, giving no intimation that any had accrued, or were exacted, may well be considered as a waiver, by him, of all claim to any costs.

The next question presented by the report is, whether the plaintiff, under the counts in his declaration, could recover for de-murrage or detention of his vessel at Robbinston, occasioned by the defendant’s neglecting to fulfil his contract, as to the manner of her unlading. The first count is general indebitatus assump-sit on an account annexed, which specifies six items, one of which is, “ To expense for waiting for freight of the vessel.” This is understood to be a detention at Newburyport, and for which, under the instructions to the jury, the plaintiff recovered, if his charge was supported by proof.

The account annexed contains no charge for detention at Rob-binston, or for any failure in assisting to discharge the timber, nor any intimation of claim on that account. From any thing disclosed in the first count, or the account annexed, to which it refers, the defendant could not have been apprized that any question was to be raised as to the detention at Robbinston.

The second count is indebitatus assumpsit for the freight of certain goods, wares and merchandize from Newburyport to Rob-binston, and for wharfage and expense of taking care of said goods. The third count is a quantum meruit for the freight^ hauling and taking care of the same goods.

One object of a declaration is to give the defendant notice what he is to answer to; — to apprize him of what is meant to be proved, in order to give him an opportunity to traverse it.

We find nothing in either of the counts in this case from which it can even be inferred that the plaintiff' claimed for demurrage at Robbinston. For every item in his account he was permitted to recover, so far as it was supported by proof, and if the jury had been instructed to include any thing further in their verdict, such instruction would have been manifestly erroneous.