Hart v. Chesley

Parker, C. J. On the trial of this action upon the general issue, a motion was made for a nonsuit, upon the ground that the declaration was insufficient in point of — 379 — law to sustain the action. It has been suggested in the argument that it is defective in several particulars; but we have not found it necessary to consider any question of this character, nor whether, if any defect did exist, it is of such a character as that it has been cured by a plea to the merits and a verdict (as is contended on the part of the plaintiff), because there is no demurrer before us, nor any motion in arrest of judgment; and an exception to the sufficiency of the declaration cannot be taken on a trial before the jury. On such trial the question is not whether the declaration is sufficient in point of law, but whether the plaintiff can make proof of the matters which he has alleged. After the plaintiff’s evidence had been put into the case, the defendant again moved for a nonsuit, upon the ground of a substantia] variance between the declaration and the proof which the plaintiff had offered in support of it. This was a legitimate objection, and taken at the proper time. If well founded, it should have prevailed. If the plaintiff had not proved substantially such cause of action as he had alleged, he had nothing to submit to the jury. The main ground of objection is, that no such entire contract as the plaintiff' alleges was shown by the testimony ; but that if a duty exists on the part of the defendant to keep a cow for the plaintiff, and also to furnish wood for her, it is not a single duty, but arises, according to the plaintiff’s own showing, from two different contracts, the one express and the other implied, and which cannot be considered as made at the same time. It appears to be clear, that if the plaintiff had a right to maintain an action for both of the matters alleged in the declaration — to wit, neglect to keep a cow, and to furnish wood — the right must be founded upon two different causes of action. If there are promises, express or implied, embracing these two different subjects, it is not as parts of the same contract. — 380 — In relation to the cow there is no express promise. It is not only an implied, promise, but it did not arise until the devisees accepted the devise made to them in the will. A declaration upon it must allege that it arose at that time. The acceptance of the devise, after the death, is a part of the consideration upon which the implied promise arises to pay what stands charged upon it. This has been assumed as furnishing a consideration, and raising a promise, for the sake of giving the party a remedy at law, which he could otherwise have only in equity. 15 N. H. Rep. 281, Pickering v. Pickering. But in relation to the wood, thei’e is not only no such consideration alleged, but no such allegation could be made. The promise is an express promise, made before any acceptance of the devise, and while the will was ambulatory, and might have been revoked. The defendant, if charged, must be charged on his express promise, because there is nothing on which to imply the promise. There is no 'charge or provision in the will from which a promise can be implied. Without proof of the express promise which, if made, was long before the death of the testator, any claim for the wood must fail. It is-clear, therefore, that, assuming the right of the plaintiff to recover all she seeks to obtain, her claim is founded upon two different contracts, not only different in the fact that one is express and the other implied, but arising at different times, and on different states of fact. No entire consideration is shown. If there was a sufficient consideration to support each, there would be two different considerations; and this shows that the argument on the part of the plaintiff that the contract in regard to the wood was merely something superadded to the contract to keep the cow, the whole forming an entire obligation, must fail. There was nothing said about keeping the cow at the time of the conversation about the wood, and no obligation to keep her can be founded upon — 381 — what then took place, nor can what then took place be alleged as a part of the contract out of which the obligation to keep her arose. The alleged variance exists, therefore, and the verdict must be set aside. The jury have found damages separately for the breach of the duty to keep the cow, and for not furnishing the wood, but they are not alleged as separate causes of action, and we cannot render judgment on the verdict for either alone. We might stop here, but the argument has extended further, and we have considered it. We do not determine whether an action at law can be sustained for not furnishing the wood. It is clear that the remedy, if any exists, is, according to the English jurisprudence, in equity, and not at law. A defect of equity jurisdiction here led to the maintenance of actions at law for the recovery of legacies charged upon land. But there are evident objections to maintaining actions at law upon promises like that, in this case, to furnish the plaintiff with wood, which do not exist in cases where a legacy is charged upon land devised, and an implied promise is raised, upon the acceptance of the devise, to pay the charge upon it. The acceptance there show's an assent to undertake the performance of the thing charged, — the consideration for the promise, being the legacy, is secured to the party assuming the obligagatiou, — and the law implies the promise to the party to whom the performance is to be made. We have seen .that the alleged promise to furnish the wood, in this case, is not one which is implied by the acceptance of the devise by the defendant, for the devise was subject to no such charge, nor was the promise made upon such acceptance. The consideration is not any thing that the party received when the promise was made, nor any thing secured to him, or placed in a situation that he could take it. Nothing was even promised to him, con — 382 — stituting a case of mutual promises. Something was proposed to be given to him, but this was by an instrument which might be cancelled at any moment. And, moreover, the will, the instrument by which the gift was to be made, was fully executed before the conversation in which the supposed promise is alleged to have occurred, and the promise was not made upon any suggestion that the testator would alter his will, if the defendant declined to undertake the duty. It was objected, in the argument for the defendant, that the consideration was executed, past, and therefore did not furnish the ground of an action. There might be more force in this if any thing had in fact passed at the time, but it was not so. And that very fact leads to another remark, which is, that if nothing had passed; if there was a mere intention to give by will; although the will was executed; yet as it was executed before the making of the promise, had at the time of its execution no connection with the promise, and was revocable at any time; — what benefit was secured to one party, or what damage was occasioned to the other, on which to raise a consideration. It is not like the case of an action by an executor to recover a legacy, to which it was likened in the argument: for in such case the action is founded upon the implied promise of the executor by reason of the assets in his possession, and his duty to pay; nor is it like a case where a provision is omitted in a will, because of a promise; nor yet like a case where one forbears to alter his will, by reason of a promise. But we are of opinion that the subsequent codicil put an end to any claim, either in law or equity, upon the promise to furnish the wood. Suppose the testator intended to give her the right to have her wood, and,, having accidentally omitted it, procured the promise of the defendant, as stated. When he subsequently made a further provision for her in the last codicil without — 383 — inserting the provision respecting the wood, which he had before omitted; in the absence of evidence to the contrary the latter must bo regarded as a substitution for what he had intended previously, even although it was not of the same character. Else, why, when he was making such other provision, did he not incorporate what he had before omitted, and thus make it secure, instead of leaving it to be effected by means of a collateral promise. If the first provision had been incorporated into the will, it might have been different; but it cannot fairly be inferred that he intended to leave what he had omitted, to be enforced by such an irregular arrangement, and to make a provision cumulative upon that, at a time when he was adding to Ms will, and could readily express in the codicil all his wishes and intentions. He expressly says, in the last clause, that the provision is made in addition to what is given in the will and first codicil, but says nothing of its being in addition to anything secured to her by any promise of the defendant. We are further of opinion that, on the case before us, no forfeiture is shown of the right to the possession of the house, and to have the cow kept. The condition is, “ that she remove into and live in said house, herself and family, and not otherwise.” What follows is stated as a reason or explanation why he affixed the condition, “ as it is not my will to give her the right at any time to put any one but herself, or any family but her • own, into the possession, use, or occupancy of the same, or for her to have any of the rents and profits when she does not reside there.” He did not intend that she should put in a tenant, or take rents and profits, without occupation. Who should constitute her family, he did not specify. Taking persons in to live with her as part of her family, in good faith, and under circumstances not indicating a colorable evasion; and temporary absences on visits, leav — 384 — ing her family in the actual occupation, are not breaches of the condition. What remedy the plaintiff has to enforce this duty of kéeping the cow we do not determine.