Canfield v. Merrick

Bissell, J. A number of questions have been raised under this demurrer, which are now to be considered. 1. It is objected, that the declaration contains no averment, [429] that the goods were delivered at the defendant's request; and therefore, shows no consideration for his promise. It is averred in the declaration, that the defendant was the bailiff of the plaintiff, and as such, received his goods to sell, and to account for the same. Does not this allegation, necessarily, and ex vi termini, import, that the goods were delivered at the defendant’s request ? Or does it not, at least, imply a privity of contract between the parties? Thus the term “sale” implies a contract. And in assumpsit for goods sold and delivered , the omission of the words “ at the special instance and request of the defendant,” is not material. 2 Chitt. Plead. 17. note p. Emery v. Tell, 2 Term Rep. 28. 1 Swift's Dig. 703. It may be added, that this is the usual mode of declaring in the action of account; and so are all the forms. 2 Swift’s Dig. 564. Wilkin v. Wilkin, 1 Salk. 9. Godfrey v. Saunders, 3 Wils. 73. The cases relied on to sustain this objection, do not apply. In Bradley v. Davenport, 6 Conn. Rep. 1., the only point decided was, that in assumpsit for the use and occupation of lands the plaintiff must aver, that the land was occupied by his permission, or at the request of the defendant:-In other words, that the land was not occupied tortiously, but in pursuance of a contract, either express or implied. And it will, it is believed, be found, upon examination, that all the authorities cited, proceed upon the ground, that where the assumpsit is founded upon a consideration past and executed, as for work and labour done, it must be averred, that the work and labour done, was performed at the request of the defendant. 1 Swift's Dig. 203. 1 Chitt. Plead. 338. Hayes v. Warren, 2 Stra. 933. This objection is clearly without foundation. 2. Equally unfounded is the objection, that the declaration furnishes no sufficient rule of damages. The value of the property is stated; and it is also averred, that the defendant neglects and refuses to render his account. The plaintiff cannot be supposed to know whether the property has been sold; and if sold, for how much. It is very difficult to see, under these circumstances, what rule of damages could be given, other than that which is furnished. For the value of this property the defendant is prima facie liable. If, however, he show upon the trial, that it has been sold, the sum actual [430] ly due, upon liquidating the account, will furnish the rule. 1 Swift's Dig. 581. 3. It is claimed, that the action of assumpsit does not lie against a bailiff of goods to sell, &c., on a general promise to account. This point is too well settled, by a uniform course of adjudication, both in Great-Britain and in this country, to be now drawn into controversy. It can only be necessary to cite the authorities, and briefly to notice those relied on, by the defendant’s counsel. Earl of Lincoln v. Topliff, Cro. Eliz. 644. Wilkin v. Wilkin, 1 Salk. 9. Poulter v. Cornwall, Ib. Tompkins v. Willshear, 5 Taun. 431. Topham v. Braddick, 1 Taun. 572. Brigham v. Eveleth, 9 Mass. Rep. 538. Wilby v. Phinney, 15 Mass. Rep. 120. Schee v. Hassinger, 2 Binn. 325. Wilmore v. Woodbridge, Kirb. 164. Pettibone v. Pettibone, 4 Day 175. Toucey v. Preston, 1 Conn. Rep. 175. Swift's Dig. 581. These authorities, and many others, which might be cited, fully establish the proposition, that the action of assumpsit well lies against a bailiff, who has received goods to sell and account for. We will very briefly examine the cases which have been cited, as establishing a coutrary doctrine. The case of Grant v. Jackson, Kirby 90., has been cited. In that case, the point now under discussion was indeed made, but not decided. Nor was a decision of it necessary ; as the demurrer was sustained on the ground that the declaration was uncertain, and furnished no rule of damages. In Avery v. Kinsman, Kirby 354., the plaintiffs alleged, that the defendant received his money for his use, and to account for in a reasonable time. The action was brought, not on the promise to account, but to pay the money;-and it was held, by a majority of the court, (Law, Ch. J. and Ellsworth, J. dissenting,) that the action did not lie, on the ground that the defendant ought to be permitted to show, that he had laid out and expended the money according to the direction of the plaintiff; whereas in the action there brought, nothing but paying the money to the plaintiff could be a performance.And the court say, “ a promise to pay and a promise to account, are substantially different.” The nisi prius case of Scott v. McIntosh, 2 Campb. 238., is relied on. That was an action of assumpsit for commissions on the [431] safe of goods, for money had and received, money paid, and on an account stated. The plaintiff sought to recover the balance of an account, which had been running for several years, and consisting of several thousand items. Lord Ellenborough did not decide, that the action would not lie. But he does say, in view of the difficulty of trying the cause by a jury, that account was the proper remedy, and that he should be warranted in stopping the trial, and requiring the plaintiff to institute a different mode of proceeding. Upon the suggestions of his Lordship, and the defendant refusing to refer, the plaintiff submitted to be non-suited. Gibbs, Ch. J., in commenting on this case, which was pressed upon him, in Tompkins v. Willshear, says : “ A sad use is made of these nisi prius cases. I remember that case; it was a case which it was impossible to try ; and there is usually a decency about counsel, which prevents them from pressing that to a conclusion, which can never be concluded.” The only remaining case is that of Collins v. Phelps, 3 Day 506. That was a decision of the superior court; and that by a divided opinion. The question arose upon the admission of testimony ; and was probably decided without much opportunity for reflection. But even in that case, it was held, that as-sumpsit might be sustained, upon proof of an express promise to account. And can we say, that under the declaration now before us, an express promise may not be proved ? 4. Another ground of demurrer is, that no sufficient breach is alleged : and we are of opinion, that this objection is fatal. It is stated in the declaration, that the defendant promised to render his account in a reasonable time, when thereto after-wards requested ; but the pleader does not aver, that a reasonable time has elapsed, nor does he allege any request. Now, it would hardly seem to require the aid of authorities to prove, that no breach of the defendant’s contract is shown. And it would seem equally clear, that without showing that the defendant has broken his contract, the plaintiff shows no right of recovery. In Langley v. Sturtevant, 7 Pick. 215., it was held, that an action does not lie against a factor for'not accounting, until demand made, unless he unreasonably neglect to render his account. And in Osborne v. Lawrence, 9 Wend. 135., it was held, that where no time for the performance of a contract is [432] specified, it should be averred, that it was to be performed in a reasonable time or upon request-and that such request has been made, or reasonable time elapsed ; and that reasonable time or not, is a question for the jury, under the direction of the court. These authorities are entirely decisive of the question. See also Lawes 232 to 239. 1 Chitt. Plead. 309. 329. Com. Dig. tit. Pleader. C. 47. Charnley v. Winstanley, 5 East 266. Upon this objection, we are of opinion, that the demurrer is well taken, and that there is nothing erroneous in the judgment of the superior court. The other Judges concurred in this opinion. Judgment affirmed,