Carroll v. Paul's Adm'r

• Citation: 16 Mo. 226
• Parties: CARROLL, Defendant in Error, v. PAUL'S ADMINISTRATOR, Plaintiff in Error.
• Decision Date: 31 March 1852
• Court: United States State Supreme Court of Missouri

16 Mo. 226

CARROLL, Defendant in Error,

v.PAUL'S ADMINISTRATOR, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1852.

1. It is not necessary to declare upon an agreement not under seal, but it is admissible in evidence in support of the common counts in an action of assumpsit.

2. Although there is a variance between the declaration or bill of particulars and the evidence offered in support of it, yet, where there have been previous trials of the cause, so that the introduction of the testimony is no surprise, the objection of variance is untenable.

3. Although the Supreme Court will not interfere with the verdicts of juries, on the ground that they are against the weight of evidence, yet, when land cases appear to arise under the operation of this rule, it must be satisfied that the instructions are entirely unexceptionable.

4. When an account between parties is stated, with debit and credit sides, and the very matter about which the controversy arises is stated in the account, the presumption of law is, that the account is just, unless it be shown that there is some fraud, omission or mistake.

5. Instructions, which are mere comments upon evidence, are properly refused.

Error to St. Louis Court of Common Pleas.

L. A. Hill, for plaintiff in error.

I. The court below erred in admitting the written agreement, dated May 1st, 1844, in evidence in this action, in indebitatus assumpsit, on the common counts.

II. The first instruction for the plaintiff ought not to have been given. The written agreement was, by this instruction, declared to be in force, and the jury was authorized to find a verdict in general indebitatus assumpsit for the services the plaintiff had performed under said covenant. The plaintiff was not entitled to recover any thing in general indebitatus assumpsit for the services he performed under the written agreement, and the court having authorized the jury to find a verdict therefor, the error is manifest, and the judgment must be reversed. Gale v. Nixon, 6 Cow. 445; 1 Chitty's Pleadings, 117, and authorities there cited; Chitty on Contracts, 565; 8 Carr. and Payne, 126; 8 Mo. Rep. 118, Stollings v. Sappington; 8 Mo. Rep. 517, Chambers v. King and Tunstall; Sel. N. P. 71 (7 ed.); 1 Wils. 117, Alcorn v. Westbrook; 2 East. 145, Hulle v. Heightman.

III. The court erred in admitting the written contract of Paul, dated 15th February, 1846, disputed by Paul on the trial as a forgery. There was no description of that instrument in the bill of particulars, nor any statement in the declaration or bill of particulars, from which its existence could be inferred. There is no item in the bill to which said agreement can be made to apply. The charge for extra services in the bill is under date of December 1st, 1846, at seven hours per day, for two years and six months, at $466 66/100 per year. The writing is of a different date; declares the hours of service to be nine hours per day; that Paul will pay at the same rate provided for in the covenant, and that the contract was prospective in its operation. The variance between that contract and the bill of particulars is so glaring as to preclude argument.

a. The rule is well settled, that a variance between the evidence offered and the bill of particulars is fatal to the case. See Holland v. Hopkins, 2 Bos. & Pull., 243; 3 Esp. 168; 4 id. 7; Breckon v. Smith, 1 Adolph. & Ell. 488; 2 Sell. 339; Quinn v. Astor, 2 Wend. 577; 1 Cowen, 574, and note; Edwards v. Ford, 2 Bailey, 461; Brown v. Calvert, 4 Dana, 219; Stanley v. Millard, 4 Hill, 50; Starkweather v. Kittle, 17 Wend. 20; Gilpin v. Howell, 5 Bar, 41; Graham's Pr. 514; Dunlap's Pr. 404.

b. The particulars of the plaintiff's demand at the trial are considered as incorporated with the declaration, and the party is not allowed to give any proof outside of them. 14 Johns. 329; 15 Johns. 222; 1 Camp. 60; Peak's Case, 172; Williams v. Sinclair, 3 McLean, 289; De Sobay v. De Laistre, 2 Har. & Johns., 223, 191; Brown v. Watts, 1 Taunt. 353; Babcock v. Thompson, 3 Pick. 446; Brittingham v. Stevens, 1 Hall's Rep. 379.

c. The second charge in the bill of particulars is “for balance due on service, from 1st of May, 1844, to 1st of November, 1846, as per written agreement, $166.66.” A balance due was not shown by the sealed covenant, nor was it any evidence of a balance due; nor was there any proof of such balance. Immediately following this item is the item referred to in the 4th point, to-wit: “December 1st, 1846, extra services other than contained or mentioned in above named written agreement, being seven hours each day for the term of two years six months, $466.66 per year--$1,166.65.” This clearly precludes the construction that any agreement in writing existed in relation to extra services. The paper of the 15th February, 1846, viewed as a contract, is different from the charge in the bill as to date, time of service, hours of employment per day, and terms of contract. The variance, therefore, is not only manifest, but there is hardly any similarity between any part of the charge and the evidence as offered by the plaintiff, in said paper of the 15th of February, 1846.

d. If the plaintiff is permitted by the court to amend his bill of particulars, it should be only on terms of paying all the costs, except the writ and jury fee. He has urged the defendant to trial on a false bill, totally variant from the proof, and if he now asks leave to change his ground, he must pay the expense of a controversy in which his claim is falsely stated.

IV. The action on the agreements of May 1st, 1844, and February 15th, 1846, should have been upon them in special assumpsit.

V. The first instruction asked by the defendant and refused by the court ought to have been given, as all the propositions therein are good law, and strictly applicable to the case. The first instruction (No. 14), given by the court in lieu of the first one asked by the defendant, does not embrace the points of direction to the jury to which the defendant was clearly entitled, and for which he asked in his first instruction.

VI. The defendant was entitled to the fourth instruction (No. 2, refused), as will be seen from the testimony. If Carroll acknowledge the justice of account ““O,” after he left Paul's service, then he had no claim against Paul for services, except those therein specified; and the paper of the 15th day of February, 1846, purporting to be a claim for $600 a year for services, is fraudulent.

VII. The 13th instruction (No. 6, refused), as a rule of evidence, ought to have been given. It is good law, and peculiarly applicable to this case. The weight of the verbal admissions, at a remote period of time, is properly contrasted with the solemn admitted written testimony of the plaintiff, in his letter and in the defendant's books; and the refusal of the court to give this direction may have tended to produce the unconscionable verdict rendered in this case. Greenleaf on Evidence, vol. 1, sec. 200.

VIII. The agreement for extra services being for only six hours per day, the second instruction is erroneous; for it authorizes the jury to find extra services to the extent of the charge in the bill of particulars for seven hours per day. This is clearly erroneous.

Todd & Krum, for defendant in error.

I. The bill of particulars furnished by the plaintiff specifies the services sued for, the length of time that the plaintiff rendered services, and the amount claimed, with sufficient particularity to enable the defendant to meet it at the trial. This is all the law requires. 1 Dunlap's Practice, 404; Graham's Practice, 514; 9 Wheat. Rep. 581; 9 Peter's Rep. 541; 6 Cow. 449; 4 Wend. 360; 5 Wend. 51.

II. The court below did not err in admitting the written agreements, Nos. 1 and 2, in evidence. The said agreements are not under seal, and they were competent evidence under the declaration and bill of particulars. They were not offered in evidence as the foundation of the action, but to prove the items for work and labor in the plaintiff's bill of particulars.

The law is now well settled, that where there is a special or written contract, the whole of which has been executed on the part of the plaintiff, and the time of payment is passed, general assumpsit can be maintained, and the measure of damages is the rate of recompense fixed by the special contract. 7 Mo. Rep. 530; 7 Cranch Rep. 299; 11 Wheat. 237; 2 Smith's Leading Cases, p. 19 et seq., and the note to the case of Cutter v. Powell, where the whole doctrine and authorities are reviewed.

III. The court below did not err in giving the instructions asked by the plaintiff.

The first and second instructions are applicable to the written agreements, and both the instructions assert a correct rule of law. If the said written agreements were competent evidence under the plaintiff's declaration and bill of particulars, then the court ruled correctly as to their effect.

The instruction numbered four asserts a correct principle of law upon the facts in the case.

The instructions three and five also assert correct principles of law. Even the defendant's counsel did not claim before the court below that the letter referred to in instruction No. 3, and the account “O,” referred to in instruction No. 5, were conclusive as to the state of accounts between the parties, but admitted that they were not. See instruction 5 (No. 10, given), asked by the defendant.

The instructions numbered six and seven are rendered nugatory by the act of the defendant himself. These instructions have relation to, and were exclusively applicable to, the set-off of the defendant, which was formally abandoned and withdrawn by the defendant after the instructions were given by the court. Of course, these instructions could not and did not prejudice the defendant.

IV. The court below did not err in overruling the instructions asked by the defendant.

The instruction No. 1, refused by the court below, contains propositions which are...