Brown v. Starbird

• Citation: 56 A. 902,98 Me. 292
• Parties: BROWN et al. v. STARBIRD et al.
• Decision Date: 17 December 1903
• Court: Maine Supreme Court

56 A. 902

98 Me. 292

BROWN et al.

v. STARBIRD et al.

Supreme Judicial Court of Maine.

Dec. 17, 1903.

(Official.)

Exceptions from Supreme Judicial Court, Piscataquis County.

Action by Charles W. Brown and another against Abilene T. Starbird and another. To an amendment of the declaration, defendants except. Sustained.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

J. S. Williams and W. E. Parsons, for plaintiffs. J. B. Peaks and C. W. Hayes, for.

defendants.

SAVAGE, J. The plaintiffs brought an action of assumpsit upon an account annexed. The most of the items in the account are so phrased as to show that they represent various elements of damages resulting from an alleged breach of a contract or contracts. The declaration was faulty, for it is a settled law that damages for the breach of performance of a contract are not recoverable under such a count.

Accordingly, the plaintiffs prayed to amend by adding a new count, which, against the defendant's objection, was allowed, and an exception to the allowance was taken. The new count alleged that the plaintiffs, on a day named, "entered into a written contract with the defendants, a copy of which is hereto annexed, which the said plaintiffs were ready and willing at all times to fulfill in each and every part thereof, by them to be performed; but the said defendants, notwithstanding their agreement and contract so entered into, did not perform and fulfill the conditions of their said contract, and perform the labor therein required and agreed upon by them to be performed, but broke the same, and by reason of said breach and failure of the said defendants to perform said contract said plaintiffs were put to great trouble and expense at hauling spool bars named in said contract, and by doing other labor and obligations in said contract by said defendants to be performed," etc. Then follows the written contract.

The defendants contend that this new count was improperly allowed, because it is itself faulty and demurrable, first, in that it does not allege any promise made by the defendants to the plaintiffs. In support of this position the defendants rely upon Bean v. Ayers, 67 Me. 482. In that case the only allegation of a promise on the part of the defendant was in these words, "And thereupon the said defendants executed under their hands and delivered to the plaintiff an agreement in words and figures as follows." Then followed the writing ipsissimis verbis....