Marion v. Faxon

Stohrs, J. The first count in the declaration, being abandoned by the plaintiff, maybe disregarded: and the first question presented is, whether there was any material variance between the contract described in the second count, and that produced in support of it on the trial. The claim of a variance in the first count between the number of boots which it alleges that the defendant received of and promised to redeliver to the plaintiff, is not applicable to the second count, in which the number of that article is stated to be the same as that in the contract adduced in evidence. But the de [493] fendant claims, that as the phrase in the latter, “ attached by me,” imports, that the property to which it related was attached by the defendant, it rendered that instrument variant from the description of it in that count, which states it to have been attached by the plaintiff. If the defendant is correct in this construction of the contract, it lays no foundation for an objection on the ground of a variance between the contract and the description of it in the declaration. The declaration does not profess to recite the contract, and therefore there is no room for any claim of a literal discrepancy ; it professes only to describe it according to its legal import and effect. After stating the attachment of the property by the plaintiff, it alleges, that in consideration that he had delivered the property to the defendant, at his request, to be kept by him, &c., the defendant promised to deliver it to the plaintiff, on demand. It describes the general character of it, as it is described in the contract, as being 400 pairs of ladies’ kid slippers, and 72 pairs of men’s calf boots. It had previously stated, for the purpose probably of shewing the plaintiff’s title to it, that it had been attached by him. This however is a statement merely of a fact, not an allegation of description, because it does not profess to state, that it appeared, by the contract declared on, by whom the property had been attached. Whether it was necessary that it should appear, either in the count or in the contract, that it had been attached, or by whom, we need not here consider, because that point has not been made, either on the trial or before us ; and indeed, if it was, it would present a question, not of variance, but of a different kind. If the phrase in the contract, importing that the property had been attached by the defendant, is to be considered as descriptive of it, in the same sense as if it had stated it to be of a particular colour, rather than as a statement of an immaterial circumstance attending it, which, in no respect, varied its character or qualities, as if it had added that it had been bought of A. B., it would not necessarily be a description of different property, but might be a different description of the same property ; and a difference in the description of it would involve no contrariety. The attachment, as claimed to be stated in the contract, is entirely consistent with the contract described in the declaration. Here, therefore, was no variance. If it [494] was requisite for the plaintiff to prove an attachment by him. as alleged in the declaration, the most that can be said, is, that the contract itself does not prove this fact; and therefore, it would be necessary to adduce other evidence of i<t. Whether such evidence was adduced, does not appear. It would be presumed, that it was, since there is no complaint in that respect, and no question is made on the subject. But we are of opinion, that the just construction of the contract is not such as the defendant claims. It is obvious on its face, that the word “ me,” contained in it, is a mere misprision, and inserted by mistake, instead of “ him,” which would refer to the plaintiff. It explains itself readily, by supposing what is most probable, that the plaintiff wrote the body of the contract, without adverting to the circumstance that it was to be signed, not by himself, but another person. We ought, in the construction of the instrument, to correct this palpable mistake, and give it the meaning plainly intended by the parties. The record in the case in which the property mentioned in the receipt of the defendant, was attached, was clearly admissible in support of the averments in the declaration, and the objection to it made by the defendant on the trial, has not been much pressed before us ; nor the objection there made to the contract declared on, founded on the statute of frauds. It was plainly not within that statute. The plaintiff’s motion for a disclosure called for no discovery, excepting as to the fact of a demand by him of the defendant of the property mentioned in the receipt of the latter; and the ruling below, that the disclosure was evidence as to no other fact, was correct. The frame of the prayer in the motion for a disclosure “ in the premises,” taken in connexion with what preceded it, clearly shews, that that phrase related only to such demand. The principle is well settled, that the disclosing party can use the discovery so far only as it is responsive to the petition. There was therefore no legal evidence adduced by the defendant to shew that his receipt was merely nominal; and hence it is unnecessary to consider what would be the effect of that fact, if proved. The defendant, on the trial, claimed to have proved, that the plaintiff in the suit on which the property of Thayer, one of the defendants in that suit, was attached, directed the [495] plaintiff in this suit to attach the property of that, but not of the other defendant in that suit ; and thereupon insisted that such direction, if not communicated to him, at the time of executing said receipt, constituted a fraud on him, which would preclude a recovery. But the court declined so to charge the jury ; and we think, correctly. A creditor has a right to secure a claim against his joint debtors, by an attachment of the property of both or either of them, The attachment of the property of one only, being therefore no violation of the rights of either of them, we perceive no reason why it is incumbent on the creditor, or the officer acting on his behalf, to inform the receipter of the property of such direction, or why the want of such direction should be deemed a constructive fraud. The receipter is cognizant of the rights of the creditor; and by enquiry, he may obtain such information as he wishes, in order to determine whether he will assume the obligation of receipting the property. If any actual fraud has been practised on him, it would, as in other cases, avoid his contract. No such claim was made in this case. A new trial is not advised. In this opinion the other Judges concurred. New trial not to be granted.