Hendrick v. Seeley

Peters, J. In declaring on a simple contract, it is necessary to state the whole consideration expressly and formally, correspondent with the facts in the case, and coextensive with the contract; for a variance between the contract alleged and the contract proved, is fatal on trial. 1 Swift’s Dig. 686. 1 Chitt. Plead. 294. It does not appear that any part of the consideration is omitted; and for aught that does appear, all the “plans and particulars agreed upon,” are detailed; and it would not be necessary to make a fac simile of the intended house, or its prototype. The object of specification is to enable the party to defend himself. But general words are sufficient, when the certainty lies within the defendant’s knowledge. Com. Dig. tit. Pleading. C. 26. Barton & al. v. Webb, 8 Term Rep. 459. Gall & al. v. Reed, 8 East 80. The question now before us, is not whether this objection would have prevailed, if the defendant had demurred to the declaration; but whether it is good after verdict. It seems to be well settled, that every fact necessary to be proved at the trial, in order to obtain a verdict, must now be taken to have been proved. Macmurdo & al. v Smith & al. 7 Term Rep. 518. Thus in Ward v. Harris, 2 Bos. & Pull, 265. where the declaration stated, that the plaintiff had sold to the defendant a certain horse, at and for a certain quantity of oil, to be delivered within a certain time, which had elapsed, the defendant promised to deliver said oil accordingly, the declaration was holden to be good after verdict. The same doctrine is recognized by our best elementary writers. “Where,” says Chitty, “no consideration, or an insufficient or illegal consideration, is stated, the defendant may either demur, or move in arrest of judgment, or support a writ of error; but after verdict, a defective, informal or uncertain statement of a consideration not apparently illegal, may be aided; and where the consideration is untruly stated, or a part thereof is omitted, the objection can only be taken on the trial as a ground of non-suit.” 1 Chitt. Plead. 297. And again: “After verdict, if the issue joined be such as neces [180] sarily to require, on the trial, proof of the facts defectively or imperfectly stated, or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured, by the verdict, at common law. In short, the court will infer almost any thing after verdict.” 1 Chitt. Plead. 404. In 1 Swift's Dig. 776, 7. the same doctrine is recognized. I am of opinion, that there is nothing erroneous in the judgment complained of. The other Judges were of the same opinion, except Brain-ard, J. who was absent. Judgment affirmed.