Damren v. Trask

• Decision Date: 11 October 1906
• Citation: 102 Me. 39,65 A. 513
• Parties: DAMREN et al. v. TRASK.
• Court: Maine Supreme Court

65 A. 513

102 Me. 39

DAMREN et al.

v. TRASK.

Supreme Judicial Court of Maine.

Oct. 11, 1906.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Samuel G. Damren and others against George E. Trask to recover for breach of covenant on a contract under seal. Verdict for plaintiffs for a certain amount, and both parties except. Exceptions both by plaintiffs and defendant sustained.

Argued before WHITEHOUSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Oakes, Pulsifer & Ludden, for plaintiffs. Arthur S. Littlefield and C. L. Macurda, for defendant.

WHITEHOUSE, J. This is an action of covenant broken upon a contract under seal for the purchase of a quantity of clapboards of certain specified kinds and dimensions. The verdict was for the plaintiffs for $1,119.97, and the case comes to this court on exceptions by both parties.

The plaintiffs' exceptions:

By the terms of the contract the clapboards were to be taken by the defendant from the plaintiffs' mill when dressed and bundled according to the contract, and paid for at the rate of $40 per thousand, 30 days after delivery. Up to June 13, 1904, about 40,000 clapboards were taken by the defendant, amounting, at the contract price, to $1,604, and a portion of these had been paid for.

The plaintiffs in their declaration set out the covenant according to its terms, and allege performance and breach as follows: "And the plaintiffs aver that, pursuant to such deed, they have done and performed all things by them according to the covenants aforesaid to be performed. Yet said defendant has not taken away from said mill the clapboards as aforesaid, and has not paid the plaintiffs therefor the sum of forty dollars per thousand, but wholly refuses and neglects to do so, and so has not kept his covenant aforesaid, but has broken the same."

On the 13th day of June, 1904, the defendant refused to take any more clapboards, claiming that the plaintiffs had failed to perform the contract, and that the clapboards were not of the proper quality.

The plaintiffs claimed to recover for the clapboards delivered up to and including June 13, 1904, and damage for refusal to take clapboards thereafter; but the defendant claimed that under the allegations of breaches in the declaration the plaintiffs could not recover for the clapboards delivered, but not paid for.

The court sustained the position of the defendant, and ruled that the plaintiffs, under their declaration, could not recover for any amount which the defendant owed them on account of the 40,000 clapboards actually received by him.

The plaintiff asked leave to amend by alleging specifically the breach of the defendant by his refusal to pay for the clapboards so delivered; but on objection by the defendant, the court ruled that this would have the effect of introducing a new cause of action and that as a matter of law such amendment could not be allowed. To these rulings the plaintiffs have exceptions.

It is a well-settled general rule respecting the assignment of breaches of covenants that the plaintiff may allege the breaches generally by simple negativing the words of the covenant; special averments being required only when such a general assignment would not necessarily show a breach. Glover v. O'Brien, 100 Me. 551, 62 Atl. 656. "A common-law method for assigning a breach of covenant is to negative the words of the covenant, and this is generally sufficient. And it may be assigned in other words which are coextensive with the import and effect of the covenant, and as general as those in which the covenant is expressed; or by stating its legal effect But it must distinctly appear by express words or by necessary Implication that the facts stated in the declaration cannot be true, when the covenant is broken." Encyc. Pl. & Pr. vol. 5, 369; Cyc. vol. 11, p. 1144, and cases cited; 1 Chit. Pl. (16th Ed.) 175.

In Brown v. Stebbins, 4 Hill (N. Y.) 154, there was a covenant "to sell and dispose of said lots of land to the best advantage that he can obtain for the same and to pay the proceeds of said sales to the said Brown"; and the breach assigned was that the defendant "did not sell and dispose of the lots to the best advantage or for the most he could obtain for them." A special demurrer to this assignment was sustained. In the opinion the court say:

"Does the pleader mean that Stebbins did not sell at all, or that he did not sell for the best price which could have been obtained? it is impossible to say which. If there was no sale, that fact should have been directly alleged; and, if the complaint be that Stebbins sold, but did not get the best price which could have been obtained, the pleader should have said so in explicit terms. Without such averment the defendants can neither know how to plead, nor what evidence they may expect to meet in the trial.

"The breach is not assigned in the words of the joint covenants, or either of them. And, when the pleader undertakes to assign a breach coming within the substance, effect, or intent of the covenant, he is held to a more strict rule than when he follows, either negatively or affirmatively, as the case may be, the words of the contract Com. Dig. Pleader, c. 47.

"The remaining breach is that Stebbins did not use all necessary care and diligence in the sale of the lots. Here the pleader has followed and negatived the words of one of the joint covenants, and as a general rule that is sufficient"

In the case at bar it is to be inferred from the exceptions that the defendant's plea was non est factum with a brief statement alleging performance of the contract on his part, and a failure on the part of the plaintiffs to perform a condition precedent. No question was raised by the pleadings in regard to the sufficiency of the declaration. The plaintiffs' allegation that the "defendant has not taken away from said mill the clapboards as aforesaid, and has not paid the plaintiffs therefor the sum of $40 per thousand," negatives the words of the contract True, it does not inform the defendant specifically whether the plaintiffs complain that the contract was broken by a refusal to accept or a refusal to pay for the clapboards, or a refusal to pay for some and a refusal to accept others. It is not a particular and explicit statement of the plaintiffs' claims. It might perhaps, have been held objectionable on special demurrer; but errors which might be deemed fatal on a special demurrer will be disregarded when the demurrer is general, or when the defendant sets up the general issue, or a plea equivalent to the general issue (Blake v. M. C. R. R. Co., 70 Me. 60, 35 Am. Rep. 297; Crocker v. Gilbert, 9 Cush. [Mass.] 134), and all objections to the form of a declaration, or that it does not sufficiently set forth the ground of the plaintiff's claim, must be raised by demurrer (1 Chit. Pl. 693, and cases cited). Only when no cause of action is stated in the declaration is the defendant justified in pleading the general issue and raising the objection upon the trial. Fuller v. Jackson, 82 Mich. 482, 46 N. W. 721. But the language of the plaintiffs' assignment may reasonably be construed to signify a refusal to pay for the clapboards taken, as well as a refusal to pay...