Curley v. Dean

Hosmer, Ch. J. The action of the plaintiff is founded on promises made to him by the defendant, in consideration of certain executory promises, to be performed on the plaintiff’s part. The contract set forth on the record, and the one proved, must agree in substance and effect. The promise sought to be enforced need not be co-extensive with the one actually made, it being sufficient to state so much of the contract only, as evinces the engagement, on which the [265] plaintiff grounds his action. Cotterill v. Cuff, 4 Taunt. 285. 287. Clarke v. Gray & al. 6 East 564. 567, 8. Miles v. Sheward, 8 East 7. But, except in certain cases on bills of exchange, promissory notes, and other legal liabilities, which liabilities constitute the consideration; although consisting of several parts, the consideration must be stated formally and expressly, and the whole of it must be alleged; for if any part of an entire consideration be omitted or misrepresented, the variance, on the proof, is fatal. 1 Chitt. Plead. 295, 6. 1 Phill. Ev. 160. 1 Esp. Dig. 264. King v. Robinson, Cro. Eliz. 79. Miles v. Sheward, 8 East, 9. Clarke v. Gray & al. 6 East 564. Lansing v. McKillip, 3 Caines 286. 13 East 115. n. c. And if the contract be in the alternative, it must so appear on the record. White v. Wilson, 2 Bos. & Pul. 119. Penny v. Porter, 2 East, 4. Cooke v. Munstone, 1 New Rep. 351. In the case of mutual executory promises, those on the one part constitute the entire consideration for those on the other, and must be averred. A trivial variation in setting out a contract is fatal; because it does not appear that the promise given in evidence, is that on which the plaintiff has declared. 1 Chitt. Plead. 304. Drewry v. Twiss, 4 Term Rep. 560. With these principles in view, I will attend to the objections made to the charge of the court. They relate to certain supposed variances, and to the effect of an award, in respect of which it is claimed, that the court expressed an erroneous opinion. The plaintiff avers in his declaration, that he contracted to employ the defendant’s son, so long as he, the plaintiff, pleased; and as the defendant contended, it was proved, that he was to employ him for the season. This the court judged to be an immaterial variance; but in my opinion, it is of a different character. The promise is alleged to have been entirely dependant for its continuance on the plaintiff’s will; while the proof evinces an absolute contract for a determinate period. Between the averment and the evidence, there is the same difference as exists between an estate for years, and an estate at will. In his declaration, the plaintiff alleges, that the contract made with the defendant, was to end, at the expiration of the season for dressing cloth, to wit, on the 1st day of May, 1819. Notwithstanding the time mentioned is under a scilicet, it must be deemed a material averment; and if so, its being [266] thus stated will make no difference. 1 Chitt. Plead. 307. Dakin's case, 2 Wms. Saund. 291. n. 1. The time specified was to identify the contract; it was matter of description; and no rule of pleading other than the contract must be truly set forth, required it. Its only object must have been, to show the termination of the contract, by a certain and invariable limit. According to the proof, the contract was to end with the season for dressing cloth, which was a term as variable as the wind and weather, and entirely dependent on external circumstances. The opinion of the court, that this was an immaterial variance, cannot be supported; as the duration of an agreement is highly essential, and the averment and proof did not concur in the period of its termination. The judge omitted to instruct the jury, that a variance existed in another particular, on which his charge to them was requested. The plaintiff averred in his declaration, that the defendant was to look to the books for the whole of his pay; and, it is contended to have been proved, that the monies first collected should be thus applied, and resort be had to the accounts for the residue. The variance is material; and the jury to this effect should have been instructed. The court correctly decided, that the award stated in the motion was conclusive on all the facts submitted. Ravee v. Farmer, 4 Term Rep. 146. Smith v. Johnson, 15 East, 213. Doe d. Morris v. Rosser, 3 East, 15. Bunnel v. Pinto, 2 Conn. Rep. 431. But this opinion should have been accompanied with an explicit declaration of the legal effect; that is, that the parol contract was merged and extinguished. The jury under the charge must have believed, that the contract, instead of being defeated, was conclusively established, by the award; and for this reason, the omission of the judge was highly material. The other Judges were of the same opinion. New trial to be granted.