Moffet v. . Sackett

S. B. Strong, J. The plaintiff claims in his complaint that the defendant is justly indebted to him in the sum of $197.25, together with interest thereon, on an account for *525 goods, wares and merchandise sold and delivered to the defendant by the plaintiff, and for work and labor done and performed, and for cash paid, laid out and expended by the plaintiff for and at the request of the defendant. The account referred to in the complaint was for gas fixtures, and for work, and labor and money advanced in reference to them. It was proved on the trial that the defendant was to have such fixtures at the same prices that his brother, Amos M. Sackett, was to pay for similar articles. The defendant contends that the contract was special, and should have been particularly set forth in the complaint. There was nothing special about it except as to the price, and in such case the general indebitatus count was sufficient under our former system of pleading, and a similar general allegation is, I think, tolerated by the Code. The only change absolutely required in this kind of action by the Code is, that the plaintiff is bound to deliver to the defendant, simply upon demand, a copy of his account. Besides, it is well settled that if a special agreement has been performed so as to leave a mere simple debt or duty between* the parties, there can be a recovery under a general count of indebitatus assumpsit. That the requisition in the 142d section of the Code, that the complaint must contain a plain and concise statement of the facts constituting a cause of action, is satisfied by the general allegation of indebtedness for goods sold and delivered, was decided by this court in Allen v. Patterson (3 Seld., 476). The referee deducted $2 from the price charged for “the basket harp with globe,” to make it correspond with what the defendant’s brother paid for a similar article. In that he was right. The plaintiff was allowed for seventeen globes one dollar and twenty-five cents each instead of fifty cents, which was the price paid by the brother for similar articles. It seems that after the contract had been made, and while it was *526 being performed, the plaintiff told the defendant that he could not have the globes unless he paid the additional price. The defendant claimed to have them at the price mentioned in the original agreement, but the plaintifl answered that if he would not take them at the additional price he should not have them at all. It was after that conversation that the defendant directed that the globes should be sent to him.- The plaintiff had not, of course, any right to change a part of the contract upon his own volition. The proposed alteration, to bind the defendant, should have been positively assented to by him. The evidence was not, in my opinion, sufficient to prove such assent. In giving the direction that they should be sent to him he may have relied upon his rights under the original agreement. He insisted, as he had a right to insist, that the articles should be delivered to him at the price originally specified. The plaintiff, certainly without any sufficient reason, demanded the additional price. No agreement was directly made at the time. I think that under the circumstances the plaintiff "should be held to his agreement, and that the referee erred in allowing him the additional compensation. The plaintiff, in his complaint, claimed compensation for work and labor, thus admitting, in effect, that they were embraced in his contract. It was proved on the trial that the plaintiff engaged to put up the fixtures in the defendant’s house. The plaintiff put up two chandeliers and charged $45 for each, that being the price paid by the defendant’s brother. The defendant contended that one of the chandeliers had been imperfectly and insufficiently fastened, and claimed a deduction on that account. That chandelier fell upon the floor of the parlor, but it was after the commencement of this suit, and it was contended by the plaintiff that any evidence as to that accident was, therefore, inadmissible. It seems to me that such evidence was properly admitted, if it had a tendency to show any original imperfection in the article, or any fault in the work of fastening it to the *527 ceiling. A gas-fitter testified that “ the defect consisted in the iron rod which ran through the pipe and the connections; the connections embrace the screws; they were too large for the screws on the rod; the male screw was not large enough for the female screw,” and that “ it could not be screwed tight or home.” The same witness testified that the chandelier, as it was -in the ceiling, immediately previous to its falling, was worth from $20 to $25, about $15 less than if it had been, as he said, “ well put up, so that it would not fall.” The referee found that the value of the repairs and putting up of the chandelier was from $12 to $15; but he refused to make any deduction, because, as he thought, it could only be claimed by way of recoupment (which was not claimed in the answer) and not as a reduction in the price or value of the chandelier. In this the Superior Court differed from him, and in doing so that court was clearly right. The stipulated price was not solely for the chandelier, but was also for putting it up in the defendant’s house. That is clear, not only from the testimony of the defendant’s brother, but also from the fact that no separate charge was made for the work. The two chandeliers are charged in the plaintiff’s bill at $90. If a plaintiff charges in his complaint for a general indebtedness for goods, and work and labor bestowed upon them, and proves that there were specified prices, and it appears from his evidence, or the evidence of the other party, that there were defects in the goods or work, it follows that there was never an indebtedness to the extent claimed, and the amount allowed to him should be limited accordingly. It requires no counter claim to reduce the amount. The court below endeavored to cure the difficulty by reducing the recovery; but in attempting to escape from one gulf they fell into another. The referee stated, in effect, that the difference in value between a chandelier properly fastened to the ceiling and the one which fell upon the floor was from $12 to $15, thereby intimating that it might exceed the smaller sum. The Supe *528 rior Court, however, allowed a deduction of $12, and by that enabled the plaintiff to recover some twenty-five cents more than what the defendant had paid into court. Where that court could find any authority thus to determine the amount of unsettled damages, and where the uncertainty was apparent from the manner in which the statement was made, I have been unable to discover. It is undoubtedly competent for a court sitting at general term, on an appeal from the special term, to allow or reject a claim of either party where its extent has been definitely fixed or can be clearly determined; but where the amount is indefinite and uncertain, it cannot be determined by the court without assuming the province of a jury. The judgment should be reversed and there should be a new trial, the costs to abide the event of the suit.