Wilder v. Colby

Morton, C. J, A count in indebitatus assumpsit for goods sold upon a credit will not lie until the credit has expired. Such a count imports an allegation either that there was no credit or that it has expired. Hunneman v. Grafton, 10 Met. 454. Morrison v. Clark, 7 Cush. 213. In this case, the plaintiff’s evidence showed that he consigned the goods to the defendant in June 1880; that in February 1881, negotiations were had between the parties as to a sale of the balance remaining in the hands of the defendant. Regarding the plaintiff’s evidence in the light most favorable to him, the utmost that it proves is a sale to the defendant upon a credit which had not expired at the time of the commencement of his suit. This was a fatal variance. To maintain his action, he is required to allege and prove that the debt was due and payable at the time of its commencement; his proof shows that the debt was not due and payable, and that he cannot maintain his action. It is not .a question of pleading by the defendant, but of proof by the plaintiff. Morrison v. Clark, ubi supra. In Reed v. Scituate, 7 Allen, 141, upon which the plaintiff relies, the question decided was a question of pleading, and the court carefully guards its opinion so as to exclude this case from its effect, by saying that, if the plaintiff himself, in making out his case, proved a credit which had not expired when the suit was commenced, “perhaps the defendant might have taken advantage of the evidence.” We are of opinion that the Superior Court should have ruled, as requested, that there was a variance between the plaintiff’s allegations and proofs; and that, upon the evidence, he could not maintain his action. Exceptions sustained.