Mills v. Spencer

By the Court, Johnson, J. The first error assigned by plaintiff is as follows, viz: “ That the said Spencer had not made such a case in the third count of said declaration,- or in the breach thereof, as entitles him to a recovery against said Mills for any deficiency of the goods in said count, mentioned at the time of, said Spencer’s taking possession of the same under the notice of said Mills, as it does not appear by said agreement that Mills was to incur any liability in such a contingency.” This involves a construction of the contract upon which the defendant, who was the plaintiff below, sought to recover. The record shows in this case that notice was, subsequent to the date of the contract, given by the said Mills to the defendant, in pursuance of the proviso in said contract; thatupon such notice the defendant took possession of the goods, and upon an inventory there was found to be a deficit of $2,588 64, which he hlaimed to be due. from the plaintiff' in erroi\ The main question for our consideration is, the construction of this contract. The plaintiff contending that by the terms of the contract, he cannot be made liable for the whole deficiency of the goods, including the ordinary sales from day to day, but only for such portions thereof as the plaintiff below should show on the trial of the cause, to have been diverted from the ordinary sales by the defendant. "While on the other hand, it is contended that the plaintiff is liable for the whole of the deficiency, without reference to the manner in which they were disposed of. And it is in view of this construction of the contract, that the plaintiff below has framed his declaration. In the construction of a contract, we are to. look. for the intention of the parties. For this .purpose we look at the [136] whole contract, and when such language is used between the parties as to render it doubtful and uncertain what they did mean, we are at liberty to look beyond the contract, to ascertain the condition of the respective parties, the subject matter about which they contracted, and to every thing except the contemporaneous and previous declarations of the parties, for the purpose of enabling us to discover, if possible, that "intention. • But these rules are not applicable, nor are we allowed to resort to them, when the language expressive of the intention of the obligor is free from all doubt and uncertainty. In such a case there is nothing for the Court to do; the contract as thus expressed must be the contract of the parties. By referring to what immediately precedes the proviso in "the foregoing contact, it will be seen that there is a clear, positive, and unequivocal agreement, on the part of Mills, to pay the whole deficiency. The language is this: “ Should there not be sufficient goods (referring to the goods to be invoiced and applied on the chattel mortgage) to liquidate the amount then remaining unpaid on the said notes and chattel mortgage, the balance shall be made up by the said Mills to the said Beach Gr. Spencer.” This language is unqualified by any other portions of the contract. The proviso immediately following enables Mills to put an end to his liability, ixx case the defendant should neglect to take possession of the goods within a certain time after notice. The previous exception in the contract has relation to that part of the agreement whex-ein Mills engages that the goods in question shall remain in Scott’s possession, and ready to be delivered over to Spencer on the mortgage, in case of Scott’s default to pay, and was for the especial benefit of Scott, to enable him to do an ordinary retailing business. We are, therefore, clearly of the opinion, that by this contract Mills undertook and promised to pay the whole amount of such deficiency, without reference to the- manner in which [137] the goods were disposed of, and consequently that the declaration is not defective in that particular. The second and third assignments of error are substantially the same as the first, except it was assigned as an error in one of them that it did not appear how, when, or by whom said invoice was made. The contract does not express in terms who shall make the invoice. It says that in the event the defendant takes possession of the goods, “ the same shall be invoiced and applied.” The declaration alleges that in pursuance of the written notice and request of the defendant, “ he (plaintiff below) did proceed to take possession of the remaining goods on hand, in possession of James P. Scott, and invoiced the same, to wit: on the 18th day of June, 1850, at Grand Rapids, aforesaid,” so that it does appear how, when, where, and by whom said invoice was made, and that such invoice was a compliance with the contract in that respect. The last and remaining error assigned is, “ that there is a want of a sufficient consideration for the alleged promise and agreement set forth in said count.” This and the last error must have been assigned without a very careful examination of the record, as it is expressly averred in said third count that this undertaking and promise was in consideration of the sale of the goods from the defendant to Scott, at the special instance and request of the said plaintiff. This, then, disposes of all the questions properly i-aised by the errors assigned, but it was insisted on the argument by the plaintiff’s counsel, and xxo objection was made to it by the counsel for the defendant, that, giving this construction to the contract in question, yet the said third count of the plaintiff’s declaration was defective in not stating the amount due from Scott to the plaintiff upon themotes and mortgage, after the application of the goods inventoried; and in not averring in the assignment of the breach, the non-payment of that amount, because, though there might be a deficiency, the de [138] fendant, Mills, would not be liable beyond the actual amount due from Scott to Spencer. The first statement was unnecessary, because ‘the amount of the original indebtedness is recited in the plaintiff’s bond, which was set forth in the declaration, and that was sufficient. The plaintiff in error could not deny it, and a special averment of Scott’s liability was no more necessary than the averment of the liability of the maker of a promissory notej after the note has been set forth in the declaration, which has been long since held otherwise; but if such an averment could be held necessary by the strict rules of common law pleading upon a demurrer, no preténce coirld be urged for a similar holding upon error after judgment, and- that, too, under the very liberal statute of 1849, under which this declaration was filed. The second averment, too, in the assignment of the breach, is, we think, substantially made. The plaintiff in his declaration, after stating the making of the inventory, “ avers that the invoice of said goods, wares, and merchandise so made, amounted to the sum of $5,835 59,- leaving a deficiency from the previous invoice, as plaintiff avers, of a large sum, to wit: $2,588 64, which last amount the plaintiff claims to he due him, with interest, from the defendant t This suit was commenced and declaration filed in the County Court. The Session Laws of 1849, sec. 26, regulating pleading, in that Court, required but- a brief statement of the plaintiff’s claims or demand, without regard to any form before that time used. The statute seems to have required that the plaintiff should, in some manner, set forth sufficient to fairly apprise the defendant of what he had to meet. Can there be any pretense here that the defendant was taken by surprise, that he did not understand the nature of the plaintiff’s claim? The.averment that the plaintiff claimed such deficiency with the interest to be due him from defendant, when taken in connection with what preceded it, was sub [139] stantially equivalent to an averment that no part of that debt, had been paid by Scott. The judgment, therefore, of the Court below must be affirmed, with costs of this Court.