Davisson v. Ford.

• Decision Date: 22 March 1884
• Citation: 23 W.Va. 617
• Court: West Virginia Supreme Court
• Parties: Davisson v. Ford.

23 W.Va. 617

Davisson

v.Ford.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1883

Decided March 22, 1884.

1. When the performance of the defendant's agreement is a condition precedent to his right to demand the remuneration, it is not necessary in a suit brought against the defendant for the non78

performance of his agreement for the plaintiff to allege in his declaration, that the defendant has been paid the remuneration, (p. 626.)

2. Tt is neither necessary nor proper in an action of assumpsit for

the plaintiff to allege the non-payment by the defendant of the damages resulting from the breach of the contract, when the contract is not to pay a debt. (p. 626.)

3. When there is a dispute between parties, and one of them claims, that the dther is liable to him, and there is some foundation for such claim, and to settle this controversy one party promises to pay money or to do some act for the benetit of the other, such promise is based on a sufficient consideration and may be enforced by suit. (p. 627.)

4. But if there is no foundation for such claim of liability, then the

promise made to settle this assumed liability has no sufficient consideration to sustain it and no suit can be based on such promise, (p. 627.1

5. On the trial of a suit based on such promise proof, thatthe liability

of the defendant, who made such promise, had no foundation, will defeat the plaintiff, (p. 627.)

6. I n framing a declaration on a special contract it is necessary to set

out the whole consideration, on which is based the defendant's promise, and it must at the trial be proved as stated, or the plaintiff must fail because of the variance, (p. 628.)

7. In framing a special count in assumpsit based on such a consid-

eration, as is stated in the third point of the syllabus, the plaintiff must by way of inducement state a case, which shows at least in a general way that the defendant was liable to him, when such liability is the consideration for the promise, the breach of which is the basis of the action, (p. 680.)

8. In an action of assumpsit on a special contract to recover damages

the entire consideration and the entire act to be done must be stated in the declaration; and if the plaintiff's proof clearly and materially varies from the contract stated in the declaration, such proof should on motion of the defendant be excluded from the consideration of the jury. (p. 628.)

9.If the contract stated in the declaration is that for the dead carcasses of certain cattle sold to the defendant by the plaintiff the defendant would pay to the plaintiff the value of said cattle before they had been killed, and the evidence showed that the defendant for the carcasses of said dead cattle promised to pay to the plaintiff thirty dollars per head, this is a fatal variance between the contract as stated in the declaration and the proof, and the plaintiff cannot recover on such proof, (p. 631.)

10. If however there had been a common indebitatus assumpsit count

in the declaration, the plaintiff could havo recovered on such proof; for as by the terms of such special contract everything had been performed except the payment of this thirty dollars per head for such cattle, this money could be recovered under a general indebitatus assumpsit count, (p. 682.)

11. If upon an action in assumpsit against one person the proof is,

that the promise sued on was made by the defendant and another jointly, the plaintiff cannot recover. p. 633.)

Green, Judge, furnishes the following statement of the case:

At May rules, 1881, Reuben Davisson filed in the circuit court of Taylor county the following declaration in assumpsit against Marshall Ford:

"State of West Virginia, Taylor County, ss.:

"In the Circuit Court, to May Rules, 1881.

"Reuben Davisson, plaintiff in this action, complains of Marshall Ford, defendant, of a plea of trespass on the case upon promises, tor that heretofore, to-wit, on the day of November, 1880, at-, to-wit, at the county aforesaid, the said plaintiff and the said defendant entered into a certain verbal contract, whereby in consideration that the said plaintiff then and there undertook, promised and agreed to and with the said defendant to pay him, the said defendant, the sum of fourteen dollars per stack for each of seven stacks of hay, then in the meadow or field oi the said defendant in the said county of Taylor, and also that lie, the1 said plaintiff, then and there promised, undertook ami agreed to, and with the said defendant that lie, the said plaintiff, would also pay him, the said defendant, the like sum of fourteen dollars for one other stack, then also in the meadow or field of the said defendant, in case the said defendant should have such other stack to spare; and that the said plaintiff also promised, undertook and agreed to and with the said defendant that he, the said plaintiff, would cause to be driven and placed in the said defendant's possession and inclosure a sufficient number of the cattle of the said plaintiff to eat up and consume the said seven stacks of hay, or the said eight stacks in case the said defendant should thereafter determine to spare the additional stack as aforesaid, by and against the first day of March then next following; the said defendant on his part undertook, promised and agreed to and with the said plaintiff that he, the said defendant, would sell the seven stacks of hay to the said plaintiff, and also the said eighth stack in case he, the said defendant, should have the said additional or eighth stack to spare; and that said defendant would feed the same to the said cattle of the said plaintiff in and upon the field or meadow of the said defendant, which the said plaintiff agreed and contracted to place in the possession and in the field or meadow ot the said defendant as aforesaid, for the purpose of eating and consuming the said hay as aforesaid, at and for the said price of fourteen dollars per stack for the said seven stacks, and at the same price for the additional or eighth stack in case defendant should have such additional or eighth stack to spare. And the said plaintiff avers that in pursuance of said contract he delivered to the said defendant and placed in defendant's held, custody and possession, on or about the day of December, 1880, and the said defendant then and there received and took into his field, custody and possession, for the purpose aforesaid, twenty-three head of the cattle of the said plaintiff, which plaintiff avers was a sufficient number to eat and consume said seven stacks of hay, and also the additional or eighth stack in case defendant should spare the said additional stack, against the said first day of March, 1881. But plaintiff avers that the said defendant, not regarding his said promise, undertaking and agreement, but artfully contriving to injure the said plaintiff in that behalf, did not nor would sell to the said plaintiff and feed or cause to be fed to plaintiff's said cattle, either in the field or meadow of the said defendant, or elsewhere or otherwise, the said seven stacks contracted for as aforesaid, but, on the contrary thereof, and after having fed to said cattle a small part of the said seven stacks, to-wit, two stacks thereof, leaving five stacks of the same uneaten and unconsumed, and long before the first day of March, 1881, to-wit, on the loth day of January, 1881, lie, the said defendant, without the knowledge of the said plaintiff, caused said cattle to be turned out of the defendant's said meadows and fields and driven away from his premises, and ever afterwards refused to take or receive said cattle, or any of them, into his said inclosures, or to feed them or cause or permit them to be fed the said remainder of said seven stacks of hay, by means whereof, the said plaintiff says that he hath been damaged in the sum of live hundred dollars.

"And for that also, heretofore, to-wit, on the 15th day of January, 1881, at the county aforesaid, the cattle of the said plaintiff being in the lawful custody and incosure of the said defendant under and by virtue of a certain contract before that time made and entered into by and between the said plaintiff and the said defendant, whereby the said cattle of the said plaintiff were to be kept in the inclosed field of the said defendant to be there agistered and fed from and after the day of December, 1880, until the first day of March, 1881, for a certain reward to be paid by the said plaintiff to the said defendant; and whereas, the said defendant, without the knowledge or consent of the said plaintiff, and in disregard of the contract aforesaid of the said defendant and of his duty, did, on the said 15th day of January, 1880, cause and suffer said cattle to be turned out of his inclosed fields and into the woods, commons, lanes and uninclosed places, by reason of which the said cattle wandered upon the track of the Baltimore and Ohio railroad and were there run upon' and against and over by the engines and cars of the said railroad lawfully being and running thereon, whereby thirteen of the said cattle, of the value of four hundred dollars, were bruised, wounded, killed and mangled were, to-wit, on the day aforesaid, lying upon and near said railroad track; and the said defendant, in consideration of the contract aforesaid, and that the plaintiff would sell and deliver to him, the said defendant, the said bruised, wounded and dead cattle and permit him, the said defendant, to have and use them as and tor his own, then ami there contracted and agreed to and with the said plaintiff to pay him, the said plaintiff, the value of the said thirteen head of cattle as the same were before they had been bruised, wounded and killed as aforesaid, and the plaintiff then and there sold and gave tc the said defendant the said thirteen head of cattle for the defendant to take, have and use as for his own; and the said defendant there- upon took said thirteen head of cattle and appropriated the same...