Way v. Wakefield

The opinion'of the court was delivered by Collamer, J. Much is said by the defendant’s counsel in relation to a plea in' abatement, which he says was put in at the county court, and being out of time by the rules of that court, was disregarded ; the ground of which plea in abatement was a variance between the writ before the justice, and the declaration which was filed in the county court, to which the cause went by appeal. This part of the case does not appear by the exceptions, nor properly could it, as the construction and execution of the rules of practice must be exclusively within the power of the court which makes them; and a court of error can take no judicial cognizance thereof. It is further to be remarked, that the ground stated by the defendant’s counsel as the foundation of his plea in abatement at the county court, was entirely untenable. In- England, there is, strictly speaking, no cause before the court until a declaration is filed, and a variance between that and the previous process would be at least seasonable for a plea in abatement, which must be first insisted on, before continuance. On an appeal from a justice to the county court, there has been a declaration, an imparlance, a judgment, and it is too late for a plea in abatement. The filing a new declaration in the county court is mere matter in amendment, allowed by a standing rule for the purpose of putting the matter into legal and technical form, required to avoid error in that court, bnt not required before a justice of the peace. If the new declaration is variant, and presenting new matter, the defendant should object to its being received; but if rejected, the plaintiff would not be out of court, or subject to abatement of his suit. He might still proceed on the former declaration.—Barber vs. Ripley et al. 1 Aik. Rep. 80. The defendant’s counsel has indulged in much latitude of remark on the weight of the testimony and other matter not appearing in the bill of exceptions, and on the merits of the question of fact which was tried below; nor is this a solitary case where counsel [228] take such a course. It should at all times be remembered, that as . to all cases which come to this court, on exceptions, they are to be viewed as strictly matters in error, the statute having merely substituted the course of passing them on motion to this court in the place of a writ of error. Such cases cannot be treated as motions or petitions for new trials, nor calling for ihe exercise of judicial discretion, like the proceedings on the return of a postea in England. We cannot revise the questions of fact which were settled below, whether it was done by the jury or by the court, by the consent of parties; and this case must be treated, in this respect, like all others, and we must receive it as a fact found that the order was not received in payment, but taken by the witness as the agent of the defendant for his accommodation. It is insisted that the plaintiff cannot recover on the count for goods sold and delivered, on the ground that a harness does not come within the words “ goods, waves and merchandize.” At common law, bona el catella included all personal property; and in a declaration, copied from common law forms, money, goods and chattels will include all personal property; and in declarations, words cannot have one sense here, and another in England. Stress is laid on the sense in which the court has decided these words are used in a certain statute, fixing the place where certain actions are to be brought. In that case the court very properly decided the words had there a local meaning; as we should say, the word stocTc, in a contract among our farmers, had a different meaning than at Lloyd’s, or the London Exchange. It is next insisted, that as there was a special or express contract in relation to the mode of payment for this harness, the plaintiff cannot recover on the general counts in his declaration. There has formerly been much controversy and contradictory decision on this subject; but as the law is now understood, the general counts are more extensively used than formerly, both in England and this country. It was formerly considered, that wherever there was an express or special promise, all implied assumpsits were merged and superseded, and could ne„ver after be resorted to. Such is not now the doctrine. Whenever there are goods sold, work done, or money passed, whatever stipulations may have been made about the price, or mode, or time of payment, if the terms have transpired so that money has become due, the genera] count may be sustained. But if the contract be executory and subsisting, and the action be for the breach, for the recovery of damages, then the count must be special. This becomes of much practical importance here in rela229 lion to the action on book, which will lie where the general counts for work done or. goods sold can be sustained. It is frequently objected that an article cannot be charged in book, and recovery be had therefor in book, because there is a particular contract in relation thereto. It is to be settled by the above rule. For instance, if A.'fagrees to make B a plough, for which B perhaps advances part, and agrees to pay the balance in grain the next winter: If the plough is made and delivered, it is proper to charge it in book, and if the grain is not paid when due, A may sustain assumpsit, as for goods sold, or an action on book. But if the plough is not made, and B sues to recover damages for the breach of the contract, he must declare specially, and cannot recover in general assumpsit, or on book. It is on this principle, that a man holding a note for money, payable to himself, may, after the pay-day has expired, maintain a general count as for money. In this case, it appears the plaintiff “ sold the defendant the harness for ten dollars, and told him he would take lumber in pay.” Most obviously by the above rule, this was proper cause for a count in general assumpsit, or on book, if the time of payment had passed; and this brings us to the main question in the case. Had the time of payment passed, was the money due ? It is insisted that the lumber should first have been demanded by the plaintiff, before suit. This was not a contract for any specific quantity of lumber at any particular time or place or on demand. Indeed the defendant never undertook to pay lumber. It was a mere reservation of a privilege to the defendant as to the mode of payment, which he might avail himself of or not, as he pleased; but could not be compelled by the plaintiff. Transactions of this character, to a very great extent, exist in this community. Our traders and mechanics are extensively in the practice of dealing out property on credit and charging it on book under an agreement to receive produce in payment. Now in such case, it is well understood such debtor may, in its season, deliver on such debt any such produce as is usually received and marketed, to wit, pork, butter, cheese, grain, wool, &c., without the same having been designated or.demanded by the creditor; and, by reciprocity, the creditor may, after reasonable time after the season for paying produce has passed, sue and collect his debt without designating or demanding-produce. The debtor, by delay, has waived his privilege. In this case, the defendant, in a reasonable time, might have delivered to the plaintiff in payment, marketable lumber, without any demand or designation as to kind, by the plaintiff. But from October, 1831, [230] to 1834, he delayed making payment. This was a waiver of his privilege. ■ But even if it were true that in this case the defendant was entitled to a demand in the first instance, it is now waived. He proceeded to make his own provision for paying the lumber by an order. ' Had that produced the pay, all would have been well; but it failed, and he made no other provision. Whenever a debtor proceeds to do a thing which he was only bound to do on notice or demand, he can never afterwards say he had not notice or demand. He waives the demand, or conclusively acknowledges it. The defendant, by making the provision by order for the payment of the lumber, acknowledges the same to have been designated and demanded. That failing to produce the pay, and he making no other provision, it is now too late to deny the demand. Judgment affirmed.