Weston v. McDowell

Grates, J. The defendant in error prosecuted Weston before a Justice, and declared orally for the price of goods, wares and merchandise, sold and delivered, and having recovered judgment, Weston appealed to the Circuit Court. The declaration remaining as it was before the Justice, the plaintiff in error pleaded the general issue thereto in that court, and the parties proceeded to trial on that issue. The defendant in error, under objection, gave in evidence the sale by her to Weston of a yoke of oxen, and judgment [357] again passed for defendant in error. The only question is, whether the sale of the oxen was provable under the pleading. It is claimed on the part of Weston, that the phrase “goods, wares and merchandise” did not authorize proof of the sale of animate property, and that the word “chattels” or “cattle” or some equivalent or equally comprehensive word or term was needed to admit of such evidence as was given on the trial. There has been some diversity of opinion as to the legal scope in pleading, in criminal as well as civil cases, of the words “goods, wares and merchandise;” and some writers of authority have supposed it to be necessary, or at least the safer course, to use the word “ chattels ” in the common count, when the price of cattle is sought to be recovered; and it is possible, that in earlier times, when the rules of pleading were much more technical than at present, and the meaning of “ goods and merchandise ” according to general and approved usage, was somewhat more narrow than it has beeome since, it was necessary to take the precaution suggested. There seems, however, to be no good ground, at this time, for the distinction which has been mentioned, when the question relates to the structure of the common indebitatus count, for property sold and delivered. For whatever may have been the received meaning formerly of the words goods and merchandise, it is quite certain that at present according to our standard linguistic authorities, the word “goods” may well include oxen. The language of the law itself affords an example of the use of the words found in this declaration, in a sense broad enough to include cattle. The third section of the statute of frauds, — § 8181^ Comp. L.— provides that “ no contract for the sale of any goods, wares or merchandise, for the price of $50 or more, shall be valid, unless,” &c., and the succeeding section provides what shall be a sufficient memorandum in case of a sale of “ goods ” at [358] auction. It has always been considered that the phrase “goods, wares or merchandise” in the third section, and the word “goods” in the fourth of this statute, embraced animate as well as inanimate property, and no reason is perceived for giving a narrow meaning to the words when used in the common count. The goods themselves are not to be recovered in the action or any damages for them. What is sought is to recover damages for nonpayment of the price for which the articles were sold, and hence the goods are said to be quite collateral to the action. The party need not be misled by the general language of the declaration. He can always compel a more specific and detailed statement of the items of the plaintiff's demand, by calling for a bill of particulars. The judgment below should be affirmed with costs. The other Justices concurred.