Hearn v. Cullin

Bartol, C. J., delivered the opinion of the Court. This is an action of assumpsit instituted by the appellee against the appellant. — 541 — It appears from the evidence that in September 1876, the appellant sold to the appellee the sloop “ Anna Willets,” for the sum or price of $455.20, to be paid by the end of the ensuing oyster season, which terminated the 1st of May or June 1877. A bill of sale of the sloop was not to be given till the purchase money should be paid, and then the bill of sale was to be given to appellee’s wife, ■ and the appellee was to create no bills on the sloop. In pursuance of the contract, the possession of the vessel was delivered to the appellee, who paid $150 in part of the purchase money, and used her in the oyster business until the latter part of February 1877. At that time, a conversation took place between the parties, in which the appellee in answer to the appellant’s question whether he would be able to pay the balance of the purchase money by the end of the oyster season, said '“he did not think that he could.” The appellant then asked the appellee whether lie could put repairs on the sloop as she would need at the end of the season, he said “ he could not.” Whereupon appellant sold the sloop to Wingate Lewis for $500, and asked appellee to give her up to Lewis, which the appellee consented to do, upon the promise by the appellant “ to settle with him satisfactorily.” Upon this agreement the possession of the sloop was delivered to Lewis. It appears from the proof that no part of the price, which Lewis agreed to pay, has been received by the •appellant. The declaration originally filed contained seven counts, but these need not be particularly noticed, as the jury were instructed by the third prayer of the defendant, which was granted, that “ if the defendant sold the sloop to Lewis with the consent of the plaintiff, but never received any part of the price from Lewis, the plaintiff is not entitled to recover on the first, second, third, fourth, fifth, sixth or seventh counts of the declaration. — 542 — The only questions before us on this appeal, arise, 1st. Upon the demurrer to a part of the third plea. 2nd, the demurrer to the eighth count of the narr., and 3rd, to the ruling by the Circuit Court on the prayers, and 4th, to the ruling upon the questions of evidence. These will be disposed of in the order above stated. ls£. The third plea alleged a set-off, “ for money payable by the plaintiff to the defendant, for goods bought by plaintiff of defendant prior to September 18*76 and since that time; for bills on said sloop ‘ Anna Willets/ paid by defendant and created by plaintiff; for loss on sale of said sloop; for use of said sloop, and for sundry matters properly chargeable in account, as per account thereof herewith filed,” &c. The demurrer was to so much of said plea as is contained in the following words, “for bills on said sloop Anna Willets, paid by the defendant, and created by the plaintiff,” and also the following words, “for loss on sale of said sloop,” “for use of said sloop.” It was not error to sustain this demurrer, a portion of the plea being good, it was proper for the plaintiff to reply to the part thereof which was well pleaded, and to confine his demurrer to the portion which was bad. 1 Chitty on Pl., Set-off, 608 m. The claims for “loss on sale of the sloop” and “for the use of the said sloop,” are for unliquidated damages and therefore not proper subjects of set-off. Smith vs. Washington Gas Light Co., 31 Md., 12. The claim for money paid for bills on the sloop, created by the plaintiff, is not a good plea, it not being alleged that the same were paid at the instance or request of the plaintiff. A voluntary payment made by one of a debt due by another; without his request, creates no assumpsit or liability on the part of the latter to the former. Mayor, &c. vs. Hughes’ Adm’r, 1 G. & J., 480. 2nd. As to the demurrer to the eighth count of the declaration, which was overruled. — 543 — This count alleges the sale of the stock by the defendant to the plaintiff for the prices mentioned, the delivery of the possession thereof to the plaintiff, the payment by the latter of $150 as part of the purchase money; “ and that afterwards, the said defendant sold and delivered the said boat or vessel to one Wingate Lewis, at and for a large sum of money, to wit; the sum of $1000, and undertook and promised to account therefor to the plaintiff; but the said defendant hath not accounted for nor paid to the plaintiff, the purchase money nor any part of the proceeds of said sale, but hath wholly refused and neglected so to do, and doth still refuse, whereupon the plaintiff claims $500.” In the ingenious argument on the part of the appellant, several objections have been urged to this Court. It is argued that the sale of the vessel to Lewis by the appellant, not being alleged to have been made with the appellee’s consent, must be understood as tortious, and an action of assumpsit cannot be maintained thereon, there being nothing in the count whereby the tort is alleged to have been waived. 2nd, That no sufficient consideration is stated to support the alleged promise of the appellant, to account for the proceeds of the sales. 3rd, If the count is to be construed to mean, that the sale to Lewis was made with the consent of the appellee, then the relation of principal and agent was created between the parties; the appellant was acting as the agent for the appellee, and is not liable to account, except for the proceeds of sale actually received by him from Lewis, and it is not alleged that the same have ever been received by him. The question of the right of the plaintiff to waive the tort and sue in assumpsit does not arise. Here no tortious act on the part of the defendant is alleged as the ground of action. Taking the whole averment together, it imports that the possession of the boat was delivered by the plaintiff to Lewis, on the request of the defendant, — 544 — ■and this is a sufficient consideration to support the promise of the defendant to account for and pay to the plaintiff the value of his interest in the property. There is no foundation for the idea that the relation of principal and agent existed between the parties. The •sale hy the defendant to Lewis was made without authority, not in any respect as agent for the plaintiff. Nor was it afterwards adopted or ratified hy the plaintiff. After the sale to Lewis, a distinct contract was made hy the defendant with the plaintiff, that if the latter would “deliver the possession of the boat to Lewis, the defendant would account to him for her. This contract is sufficiently stated in the eighth count. The demurrer was therefore properly overruled. 3rd. The prayers are next to he considered. The second prayer of the defendant, which was refused, relies upon an alleged variance between the original contract of sale of the sloop to the plaintiff as stated in the declaration, and that contract as proved. The supposed variance consists in the failure to allege as parts of the contract, “ that the purchase money was tobe paid at the end of the ensuing oyster season, and that the plaintiff was to make no hills on the boat without the defendant’s consent.” It is a sufficient answer to this objection to say that the •original contract of sale to the plaintiff, is alleged merely -as inducement, and forms no part of the ground or cause of action. It was not necessary to set out all the elements or particulars of that contract, hut only so much as showed that the plaintiff was rightfully in possession of the property. The ground of action is the promise on the part of ■the defendant, to account to the plaintiff for the property, made in consideration of the plaintiff’s giving up the possession to Lewis. The plaintiff’s counsel is in error in supposing that the agreement to pay the purchase money at the end of the oyster season, and the agreement to — 545 — make no bills on the boat, were in their nature conditions precedent to the vesting of the right of possession in the plaintiff. “An objection for variance between the averment and proof will not be valid where the averment does not arise out of or form an essential part of the contract sued on.” 3 Robinson’s Practice, 562; 1 Chitty Pl., 262 m, 318. (Decided 28th July, 1880.) The defendant’s fourth prayer was properly refused. The fact that Lewis failed to pay the defendant for the boat, was wholly immaterial, and in no manner affected the right of the plaintiff to recover. As before said the sale to Lewis was the act of the defendant, not made as plaintiff’s agent; the latter did not agree to accept Lewis as purchaser from him, or to look to Lewis for the purchase money; but delivered the possession of the boat on the promise of the defendant to account to him for her. There was no evidence to support the hypothesis of the defendant’s seventh pr&yer, and it was for that reason properly refused. We find no error in granting the four prayers of the plaintiff. The objection that the first and second leave out or omit to state material facts, relating to the original contract of sale to the plaintiff, has been answered in disposing of the defendant’s second prayer. We affirm the ruling of the Circuit Court on the first and second bills of exception. The evidence therein offered was properly rejected for reasons before stated. The faihrre of Lewis to pay for the boat did not affect the right of the plaintiff to recover. The motion in arrest was properly overruled for reasons stated in disposing of the demurrer. Judgment affirmed.