James & Mitchell v. Adams.

• Decision Date: 17 April 1880
• Citation: 16 W.Va. 245
• Court: West Virginia Supreme Court
• Parties: James & Mitchell v. Adams.

16 W.Va. 245

James & Mitchell

v.Adams.

Supreme Court of Appeals of West Virginia.

Decided April 17, 1880.

1. In an action on a special contract to recover damages for failure to accept and pay for propei'ty agreed to be purchased by a special contract, the entire consideration and the entire act to be done in virtue of such consideration must be stated in the declaration substantially; and if the plaintiff's proof is of a contract which materially differs from that stated in the declaration, after the plaintiff's evidence has been all submitted, the court on the defendant's motion should exclude it from the consideration of the jury, if there be a manifest variance substantially between the contract proven and the contract stated in the declaration, when the evidence is viewed in a manner most favorable to the plaintiff, as on a demurrer to evidence by the defendant.

2. A material difference in the description of the property agreed to be sold between the statements of the declaration and the plaintiff's proof is such a material variance as will destroy the plaintiff's right to recover.

If the declaration in such an action states that the contract required the defendant to pay for the property sold a certain sum in cash and the balance on a certain credit, and the proof is that the contract required the defendant to pay the stated sum in cash and to give his note for the balance, this is not such a variance as would destroy the plaintiff's right to recover, even though the length of time given for the payment of the residue as stated differs from the length of the credit as proven.

In such an action the measure of damages is the difference between the market value of the property, when it ought to have been accepted, and the contract price.

If the property agreed to be sold was the remnant of a stock of dry goods, the market value of such remnant, when it ought to have been accepted, may be proven by the testimony of dry goods merchants not acquainted with the particular stock of goods, but who testify generally to the per cent, of depreciation of such a remnant of a stock of goods produced by sales of the more salable portions and by the injury resulting from keeping them in the store.

6. Such an action may be brought, when the defendant refuses to accept the goods and repudiates the contract, before the time has elapsed, which under the special contract he was allowed to pay the balance due under said contract.

7. The plaintiff in such an action, brought before all the purchase-money is due, cannot recover on the common counts.

8. Upon such a contract the plaintiff can in no form of action recover, if the defendant accepted the goods sold, and subsequently the plaintiff took possession of the goods as his own, and sold them as his own without the defendants objecting, such conduct of the parties being a cancellation of the contract.

9. In such an action, if the contract was for the sale of such of the goods as might be in the store at a future day named, and by the contract the plaintiff agreed to run down the stock of goods as much as possible by the future day named for their delivery by making sales of said goods, it is not only necessary to allege in the declaration, that this obligation of the plaintiff had been fulfilled, but also that the defendant had notice thereof. Such notice is sufficiently proven by showing the defendant's knowledge of its fulfilment, and an express notice thereof need not be proven.

Writ of error and supersedeas to a judgment of the circuit court of the county of Wood, rendered on the 17th day of October, 1878, in an action at law in said court then pending, wherein A. R. James and John W. Mitchell were plantiffs and T. H. Adams was defendant, allowed upon the petition of said Adams.

Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the judgment complained of.

Green, President, furnishes the following statement of the case.

This case has been before this Court heretofore. It is an action of assumpsit brought in the circuit court of Wood county, by the plaintiffs, James and Mitchell, against the defendant, Adams for his refusal to accept and pay for certain goods, &c, which by a special contract had been sold to him by them. On the first trial of the case the jury found a verdict for the plaintiff for $1,000.00; and the court refused to grant a new trial and entered up a judgment pursuant to the verdict. The defendant obtained a writ of error to this court; and the judgment of the circuit court was reversed, a new trial awarded, and case remanded to the circuit court, and the plaintiff permitted to amend his declaration. See 8 W. Va. 568.

The suit was an action of assumpsit on a special verba contract for the purchase of a stock of dry goods and th residue of a lease of a store. Originally the declaration contained but one count, to which the defendant demurred, which demurrer the circuit court properly overruled, as decided by this Court. On the trial of the issue of non assumpsit; after the plaintiffs had introduced all their evidence, the defendant's counsel moved to exelude it from the consideration of the jury, because the contract proven thereby was materially variant fron that set out in the declaration. This motion the circunt court overruled, saying, "it was the province of the jury to determine whether the contract proven was substantially the same as the contract set out in the declaration."

This Court decided that the circuit court erred in this ruling, and held, that it is proper for the court to exclude in such a case the plaintiff's evidence from the consideration of the jury, where, considering the evidence in the most favorable light for the plaintiff as on a demurrer to the evidence by the defendant, the variance in material portions of the contract is manifest; but thar the plaintiff ought to be permitted to file an amended declaration. This was done, there being in the amended declaration three special counts and the common counts.

The first special count, after reciting that the plaintiffs were merchants engaged in selling dry goods in Parkersburg, states that they made a contract of sale with thede- fendant in September, 1871, and that in the sale was included First The entire stock of goods contained in their store which might be in their store on January 1, 1872, when the property sold was to be delivered; Second A thousand dollars worth of dry goods not then in the store but which had been bought and were en route from the east; Third The plaintiffs were to be permitted to keep up their stock of staple goods; Fourth They were required to run down the stock of goods as low as possible by January 1, 1872; Fifth The defendant was then to pay cost prices for the goods, $1,000.00 in cash and the residue in six and twelve months from that time. The plaintiffs allege that they performed all that was required of them under this contract, and offered to deliver these goods to the defendant on January 1, 1872, and incurred a cost of $100 in making an inventory preparatory to delivering these goods.

The second count describes the property sold differently, as, First All the dry goods in the store on January 1, 1872; Second The unexpired term of the lease of said store. It also differs in not alleging that by the original contract the plaintiffs were to run down by January 1, 1872, the stock of goods as low as possible, but states that by a modification of the contract, made December 1, 1871, this was to be done by selling off the goods at cost-prices.

The third count is also the same as the first except that the description of the property sold is, First All the dry goods in the store on January 1, 1872; Second The $1,000.00 of new dry goods then en route from the east, As the breach of the contract by the defendant the first count alleges, that the plaintiffs tendered the goods on January 1, 1872, and the defendant refused to accept or receive them. There are no damages laid at the end of this count. In the second and third counts the breach is the same, except it includes that defendant refused to pay for the goods; and damages are laid at the close of these counts. The common counts concluded in the usual manner, thus: "and whereas the defendant afterwards, to wit, on the 5th day of January, 1872, at the county aforesaid, in consideration of the premises respectively then and there promised to pay the said several sums of money respectively to the plaintiffs on request, yet the said defendant has disregarded his said promise and has not paid the said sums of money or any part thereof to the said plaintiffs, or either of them, although often requested so to do, to the damage of the plaintiffs $2,000.00. And therefore they bring this suit."

To this declaration and each count thereof the defendant demurred, the court overruled the demurrer, and the defendant pleaded non assumpsit. The jury found a verdict for the plaintiff and assessed the damages at $940.00 with interest from January 1, 1872. The court overruled a motion for a new trial made by the defendant's counsel, and rendered judgment pursuant to this verdict, to which the defendant's counsel excepted, and the court certified all the evidence in the case.

Several witnesses of the plaintiffs were introduced to prove the value of the goods at the time of their delivery as fixed by the contract, as compared with the cost-price which by the contract was to be paid. They testified that they were merchants; that they knew nothing of this particular stock of goods, but as merchants they estimated that the remnant of a stock of goods, sold down as low as this was stated to be sold down, were worth considerably less than cost-prices, because of the selling off of the more salable goods and because of the injury resulting to dry goods from keeping them in a store a length of time. They undertook to estimate the per cent, of this depreciation below the cost prices of the goods. No exception was taken...