Smith v. Kerr

It was objected on the trial that the lease, which was under the seals of the parties, could not be given in evidence under the declaration which, as insisted by the defendant’s counsel, was in assumpsit. This objection was overruled by the common pleas; and I am of opinion that the declaration was sufficient in a justice’s court, to allow the plaintiffs to give in evidence under it the written agreement. The objection to it was, that the declaration was in assumpsit, and the agreement being under the seals of the parties was not, therefore, admissible in evidence as the foundation of an action of assumpsit upon a simple contract. The justice, in his return, states that “ the plaintiffs declared in assumpsit in writing which is hereto annexed.” That is, the plaintiffs declared in writing, which the justice annexed to his return; which shows, that although the justice called it a declaration in assumpsit, it may be as well called a declaration in covenant as in assumpsit. There was a notice annexed to the declaration that the paper annexed was a copy of the lease referred to in the declaration. The agreement produced on the trial purported to have been signed and sealed by the parties respectively; the copy annexed omitted the sign of the seals. The notice was no part of the declaration, nor the. copy of the lease technically an oyer of it; and therefore an objection to the admission of the lease or agreement in evidence, for a variance between it and the copy given, on the ground that the sign of the seals had been omitted, can not be sustained. It is not necessary in a justice’s court, in an action upon a sealed instrument, that the declaration should contain an averment that the' instrument was signed and sealed by the parties or either of them. It is enough to declare generally for a breach of contract, referring to the contract or agree

The defendants’ counsel objected to the giving of the agreement or lease in evidence, also on the ground that it had not been proved that Abner Potter, one of the plaintiffs, and Charles S. Kimble, one of the defendants, executed the agreement in person or by attorney duly authorized. The objection was overruled. Before it was made, the subscribing witness had testified that the signatures of two of the plaintiffs, Smith and Isaac Potter, to the agreement, were in their hand-writing; that he saw Isaac Potter sign the name of Abner Potter, and that they were partners; that Kimble was about the store at the time the agreement was executed; that he had seen him write, and that in his opinion, the signature of Kimble to the agreement was in his proper hand-writing. Other witnessés had testified that the signature of Kimble was in the hand-writing of Kerr. The objection was properly overruled, for if it was material whether the name of Kimble to the agreement had been put there by himself or by Kerr, there was evidence enough to authorize the fact to be submitted to the jury.

The defendants covenanted with the three plaintiffs, and if it was admitted that one of them, Abner Potter, did not sign or seal the instrument, the law would not convert it into a covenant with the other two. All the covenantees must sue, although they did not all sign and seal the agreement. (Petrie v. Bury, 3 Barn. & Cress. 353.) The omission of the name of Abner Potter as a co-plaintiff would have been fatal. (Smith v. Tallcot and Ransom, 21 Wend. 202 .)

The judge charged the jury that although the lease or agreement was not executed by all the parties, yet if they, being in

The ground of the exception is, that no prior authority from Kimble to Kerr to execute the lease in his name, or subsequent ratification by Kimble, either verbal or by writing without seal, is sufficient to give validity to the lease as the sealed contract of Kimble. Whatever may have been the technical doctrine of the common law, as to the authority of an agent to execute a-sealed instrument in the name of his principal, so as thereby to bind him, as the party thereto, unless the authority is conferred by an instrument under seal; it has been decided in England that one partner, in the presence of his copartners, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts in judgment of law to an execution of the deed by all the partners, though sealed by one of them only. (Ball v. Dunsterville, 4 T. R. 313; Williams v. Walsby, 4 Esp. N. P. 220; Steiglits v. Eggin ton, 1 Holt’s N. P. 141; Brutton v. Burton, 1 Chit. R. 707 ; 3 Kent’s Com. 5th ed. 47.)

There was evidence enough in this case to have authorized

The defendants’ contract was not to make good the ordinary deterioration of the kettles, resulting from fair and proper usage—unless the kettles broke or became so injured as should render them unfit for the place and use where they were then used. If damages had been claimed for an injury to the kettles, or either of them, less than a breaking, or less than that, which rendered them unfit for the place and use where they . were at the time of the contract; the burthen of proof of such

In form the declaration was clearly in assumpsit. There being no averment in the declaration that the lease was under seal, and the copy given not purporting upon its face to have been sealed, any person looking at the copy given would suppose that when the lease was written it was designed that it should be sealed, but that in point of fact the parties had, for some reason, omitted to seal it. This was clearly a good declaration in assumpsit, and if the lease produced in evidence had been without seals, the declaration would have been a proper and appropriate one, under which to give it in evidence. ( 4 Denio, 420 .) In that case it'is conceded that the justice erred in permitting evidence of a contract under seal to be given in evidence under a declaration hi assumpsit. Judge Jewett says, “ upon general principles I think it is obvious the justice erred. A specialty can not be given in evidence as the foundation of an action of assumpsit upon a simple contract. The variance changes the nature of the contract, so as to render the one set out a different contract, in legal contemplation, from that received in evidence.” (Cowen & Hill’s Notes, 518, note 407.) I think this is clearly so upon well settled principles of pleading. In Andrews v. Montgomery, ( 19 John. 165 ,) the court say, “ It is well settled that assumpsit can not be supported where there has been an express contract under seal.” Chitty says, “ When a party has a security of a higher nature he must found his action thereon, and as the law has prescribed different forms of action on" different securities, assumpsit can not in general be supported where there has been an express contract un

In the case of Van Santwood v. Sanford, ( 12 John. 197 ,) the declaration contained four counts. The fourth alledged that certain differences having existed between the plaintiffs and one Isaac Newton, they on the 22d of March, 1814, entered into articles of agreement in the words following, (setting forth the agreement to submit,) and hereupon the said defendant, on the 24th day of March, in the year aforesaid, entered into a guaranty covenant and agreement in the words and figures following, to wit, (setting forth the agreement of the defendant verbatim,) and which concluded in the following words: “ Signed and sealed the 24th - day of March, 1814. Stephen Sanford, L. S.” and by which the defendant guarantied the performance of the award of the arbitrators on the part of Newton to the amount of $800. The award of the arbitrators was then stated, by which Newton was- to pay $680,32 in two days, and notice of the award to Newton and to defendant, and that neither of them had paid the money, and that the defendant had not kept his covenant and guaranty so by him made, &c. To this count there was a demurrer.

The court say the demurrer to the fourth count is well taken; the action is covenant and it can not be maintained but on a deed. The only averment or allegation of a deed is “ and hereupon the defendant on the 24th March,” &c. (reciting the averment in the declaration.) It must appear that the contract was under seal unless it be expressly averred to be so, and though the bond or deed upon oyer recite “ in witness whereof we have hereunto set our hands and seals,” yet that does not amount to such an averment but that the party must show that the bond or deed was actually sealed by the other. The court further say “ there are some words of art, such as ‘ indenture, deed, or writing obligatory,’ which of themselves import that the instrument was sealed; but if it be alledged that J. S. by his certain

But it is said that the declaration is good and sufficient in a justice’s court, where pleadings are to be liberally construed. If the original contract had been annexed to the declaration I have no doubt it would have been a sufficient declaration in covenant if not demurred to, because it would then have affirmatively appeared that the contract was under seal. In this case, if the defendant had demurred to the declaration and alledged as cause of demurrer that it was not alledged that the contract declared on was under seal, it would have been a sufficient answer that the declaration on its face did not appear to be in covenant, but was. in fact assumpsit, and that a sufficient consideration was set forth for the making of the contract. The defendant could not have sustained a demurrer. They therefore had no alternative but to plead. But to say that a declaration which is good in assumpsit, so that a demurrer .will not lie thereto, will also answer as a declaration in covenant, is an anomaly in pleading which I do not understand.

There is no doubt the justice might disregard any technical variance between the contract offered in evidence and the one set out in the declaration, which was not calculated to mislead the defendants, and which was of the same nature of that set forth in the declaration. But this is not a case of variance

I am aware that in the case of Mosher v. Lawrence, (4 Demo, 421,) a case similar to the one in question, Judge Jewett says, “I am of opinion that the defect in the declaration was such as the justice’s court had ample power to amend before verdict; and that on the trial it might well disregard the variance.” That case was not reported, and was not brought to the notice of the supreme court upon the argument of the cause now under consideration. If it had been, it is probable that court would have felt bound by it, as an authority for its action, subject to a review in this court. But the two cases have been decided upon principles which I think evidently conflict, and it remains for this court to determine which is in accordance with the then well settled and known rules of pleading and evidence. I believe no other case can be found than the one cited, where a variance which changed the entire nature of the action was held to be such that it might be disregarded upon the trial.

It is true that the jrtdges of the. court of common pleas, when reviewing justices’ judgments on certiorari, are required to give judgment in the case as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect

The form of action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. ( 5 Hill, 177 ; 1 Comst. 226.) The matter here set forth clearly made a good cause of action in assumpsit, but no pretence of a cause of action in covenant.

In the case of Mosher v. Lawrence, some stress was laid by the court upon the fact that the defendant had not been misled, or prejudiced, because the plaintiff offered to amend and to consent that the cause be adjourned, so as not to prejudice the defendant. No such offer was made in this case; nor was there any amendment made in fact.

The rule that pleadings in justices’ courts shall be liberally construed, has nothing to do with this case. The declaration is good both in form and substance, as a declaration in assumpsit. But the declaration is not supported by the proof. The case of Howe v. Wilson, ( 1 Denio, 183 ,) is directly in point upon this question. That was an action before a justice ; the declaration alledged that the defendant, with force and arms, broke and entered the plaintiff’s close situated, &c. and then and there took and carried away the plaintiff’s horse, &c. Plea, not guilty. The proof was that the defendant entered the close of another man near the plaintiff’s and took and carried away the plaintiff’s horse. Bronson, J. in delivering the opinion of the court says, “ The plaintiff relies on the principle that pleadings in justices’ courts are to be liberally construed, but the rule has nothing to do with this case. There is no defect in the declaration either in form or substance. The difficulty is that the declaration is not supported by proof, and for that reason the plaintiff was properly nonsuited.” So in the case now under consideration, the declaration was a good and perfect one

And-thereupon the judgment of the supreme court was reversed, and that of the common pleas affirmed.