Jones v. Dimmock

By the Court, Brown, J, 'The written instrument offered in evidence in this oase is not prima facie evidence of an existing indebtedness, and the plaintiff in order to entitle him to recover, must show affirmatively that the defendant has not fulfilled his contract. The plaintiff rested his case without showing any breach of the contract. To show s^ch breach he should show a demand and a noncomplianco by the defendant, or a refusal by the defendant- to comply with the contract. After the, defendant had rested his case, the plaintiff and his son testified that Dimmock acknowledged that he had not been able to comply with the conditions of his contract and would pay the balance in money, This, Dimmock denies; but I think the'concurrence of Jopes and liig son should bo credited rather than the statement of Dimmock. While this promise is not to be considered as binding as a new contract, I think it may be taken as an admission of a breach of the contract by the dofcndant.or as sufficient itself to Constitute a breach- That this proof was made while introducing the rebutting testimony makes no difference. ' The order of proof is always in the discretion of thg Court; and whether any given testimony is elicited on the direct examination, on the cross-examination, re-examination or by way pf rebntting, the Court will apply it to any branch of the case rir to any alleged facts or thory introduced therein, It therefore follows that the plaintiff is entitled to recover. [89] I cannot recognize the rule of damages as claimed by the defendant’s counsel, thát it should be the value of the goods at the time of the breach. It is true that this doctrine is held by many authorities. See Tyler vs. Tyler, 6 Harr. & J. 273; Davenport vs. Wells, 1 Iowa, 598, Edgar vs. Bois, 11 Serg. & R.. 445; McDonald vs. Hodge, 5 Haywood T. R., 85; Price ads. Instrobe, Harper, 111; Wilson vs. George, 10 N H., 445; Norman vs. Islay, 17 Wis, 314; Doak vs. Ex’rs of Snapp, 1 Coldwell (Term.) 180; Williams vs. Jones, 12 Ind., 561; Price vs. Spades, 13 Id., 458; Parks vs. Marshall, 10 Id, 20; Williams vs. Sims, 22 Ala., 512; Morris, Ad’m’r vs. Pruther, 3 Met., (Ky.,) 196. It was the rale of the civil law, as announced by Pothier, (Path, on Ob., No. 497.) That “ all agreements to pay in specific articles are presumed to be raa le in favor of the dibtor, and he may in all cases pay the amount of tin d bt, in money, in lieu of the articles which, by the terms of the contract, the creditor had agreed to receive, instead ot money.” In the case of Trowbridge vs. Holcomb et al. 4 Ohio St. R., 38, the Court, referring to this proposition of Pothier, say : “With perhaps some qualifications of the generality of tl is language, this is also the rule at common law;” and they held that an agreement to pay $1.590 in wool, at 20 cents per pound, might be discharged by the payment of that sutn of money,-and that sum would be the measure of damages if the wool be not delivered. To the same effect are the cases of Perry vs. Smith, 22 Verm., 301; Smith vs. Smith, 2 J. R., 235; Pinney vs. Gleason, 5 Wend., 393; Brooks vs. Hubbard, 3 Con. R. 58; Baber vs. Muir, 12 Mass. 121; Mettler vs. Moore, 1 Black., 342. To my mind, the rcasonirg of the cases last above cited, is more satisfactory than of the cases taking a different view ot the law. But in view of the testimony in this case it would seem immaterial whether the rule of damages is as contended for by de fendant’s counsel or not. There is no testimony in the case tending to show the value of the lumber and shingles to be dif ferent from that agreed upon by the parties, and in the absence ot any proof upon that point the price specified in the contract would, of course, govern as the rule of damages. [90] Let judgement be entered for the plaintiff for the balance due him, with interest from January 1st, 1870, to be computed by the Clerk.