Drown v. Smith

Richardson, C. J. delivered the opinion of the court. The objection, that the written contract was not admissible in evidence upon either count in this case, must be overruled. It is true that, the contract, being for the delivery of specific articles, could not be declared upon as a bill. Chitty on Bills, 39.—5 D. & E. 482, Carlos vs. Fancourt. But the first count states a good consideration ; and, although the promise of the defendant is alleged to be u by his t! note,” that may he rejected as surplusage, and then that count will be a proper count upon the contract, and will he [301] proved by the memorandum signed by Smith. 7 John. 461. Thomas vs. Roosa. The second count Is upon the contract. But it is objected, that the date of the memorandum varies from the date stated in that count. It is however well settled that, although when a plaintiff declares upon a written instrument, as bearing a particular date, a variance from the date stated is fatal ; yet, when a count is founded upon a contract, it is not important what day is laid, unless the date be made material by the nature of the contract. Lawes Pl. in Assumpsit, 92. In the contract stated in this count, there is nothing, that renders the day when it was made material. It is also contended, that the defendant was not bound by the estimated value of the goods in the receipt, but ought to have been permitted to shew the true value at the time, when the demand was made, in order to enable the jury to assess the damages according to the real value. But tvo cannot adopt the defendant’s construction of the written agreement. We cannot bring ourselves to believe, that the value was inser* ed in the agreement, merely to fix the value at the time the agreement was made ; because it does not Seem to us, that it would have been of any importance to either party, to fix the value at that particular period. But we are of opinion, that the value was inserted, in order to fix the extent of the defendant’s liability, in case the goods were not returned. It is very obvious, that this might be very-useful to both parties. It saved the plaintiff the trouble and expense of proving the value ; and it shewed the defendant' the utmost extent of his liability. Indeed, it determined between the parties the value of articles, whose value was very uncertain and very difficult to ascertain, and saved both parties from all trouble on that subject, in case the goods were not returned. It has been urged, that the terms of the contract indicate, that the intent was, to fix the value merely at the time the defendant received the books, the 41 same being valued at two thousand three hundred and fifteen dollars.” But ⅛ giving a construction to a contract. [302] of this kind, we must look beyond the mere forms of expression, to the intent of the parties, and give effect to that intent, whatever may have been the mode of expression ; and, after mature consideration of the subject, we cannot doubt, that the goods were valued in the receipt, in this case, in order to 1⅜ their value in any dispute, that might arise concerning them. We are therefore of opinion, that this objection must be overruled. But it is further objected, that if the parties had agreed upon the value of the books, the amount of the contract was, that the defendant should return the books, or pay the estimated value, and ought to have been so stated in the declaration ; and it is urged, that no count in the declaration so states the contract, and that, therefore, the written contract was inadmissible as evidence upon either count. But this objection is not well founded in fact. There is no count, that states in direct terms, that the contract was to deliver the books, or pay the estimated value ; but the first count states that in substance. Por it states the value as estimated by the parties ; and a contract to return goods of an estimated value is, in substance, a contract to return the goods, or pay the estimated value. This objection therefore cannot prevail. One further objection remains to be examined. It is contended, that when this defendant offered a part of the goods, the plaintiff was bound to receive them. Had each article been particularly valued, we think that this objection would have merited much attention, and we are not prepared to say, that it could have been satisfactorily answered. But, in this case, the value of all the articles was fixed, and not the value of each ; and we are of opinion, that in such a case a tender of a part imposed no obligation upon the plaintiff to receive the part so tendered,unless the defendant had a reasonable excuse for not delivering the residue. In this case no such excuse was offered. Indeed, it was admitted, that the defendant had sold a considerable portion of the hooks, and as he had thus voluntarily disabled himself to re [303] turn a part of the books, we think the officer ought not to be compelled to take the residue. We are therefore of opinion, that the must be Judgment on the verdict.