Bunnel v. Taintor's administrator

Hosmer, Ch. J. On the first count in the plaintiffs’ declaration, the verdict was for the defendant, the person who moved for a new trial; and, as relative to this part of the case he has nothing of which to complain, it must be laid out of consideration. The action below, on the second count, was maintained on the ground of express contract. The motion, in its whole structure; the objection made to the testimony; and the charge of the judge on this point; incontrovertibly establish the fact. Hence, it is entirely unnecessary to express an opinion on the question, whether indebitatus assumpsit for the consideration of land sold, on the basis of implied contract, is sustainable. On this subject I entertain no doubt; nor on another connected with it; and that is, whether the plaintiffs can maintain this action, in their joint right, for a valuable consideration proceeding from the wife only. On both questions I waive the expression of an opinion, and confine myself to the enquiries made below, regarding the express contract only. The foundation of the defendant’s motion, is, a supposed variance between the plaintiff’s allegations and the proof. It is said, that the evidence of an assumpsit, if it were sufficient, was not of a contract to pay a sum of money to the plaintiffs, but to pay Amelia, one of the plaintiffs, while sole and unmarried; and besides, that there is a variance between the terms of the contract as alleged and as proved. It is an undisputed principle, that where the plaintiff declares on a special agreement, he must prove the contract stated, as in his declaration it is expressly averred. The action is not brought on an agreement made with Amelia Bunnel, but on a promise made to the plaintiffs jointly. The two deeds adduced in evidence evinced nothing on the matter in question; but the judge admitted testimony to prove, that in the year 1811, when the land was conveyed, by Taintor, to the said Amelia, he promised, whenever she should reconvey the premises, to repay her the purchase money, or so much thereof as he should have received. This, with the admissions of Taintor, to which I shall presently attend, is the testimony, on which the plaintiffs relied, to sustain their declaration. This evidence did not bear on the plaintiffs’ allegations. The averment is of an agreement made with the plaintiffs jointly; and the proof, of a contract made with Amelia, when she was a feme sole. Then, as to the terms of the agreement; the plaintiffs allege, [278] that the defendant’s intestate promised to pay them a thousand dollars, in a reasonable time; and the evidence shows a contract, on the part of Taintor, if Amelia should reconvey the premises, to pay the purchase money, viz. eleven hundred dollars. or so much thereof as should have been received by him. The variance is palpable and fatal. The proof of Taintor's admissions, that he owed the plaintiffs for the premises, and had agreed to pay them, is of no avail. The testimony, for aught I perceive, was unobjectionable; but the reception of proper testimony, does not legalize the reception of that which was inadmissible. Peters, Brainard and Bristol, Js. were of the same opinion. New trial to be granted.