Mcewen v. Morey
| Decision Date | 30 September 1871 |
| Citation | 1871 WL 8081,60 Ill. 32 |
| Parties | HENRY MCEWENv.STEPHEN MOREY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.
Messrs. DICKEY, BOYLE & RICHOLSON, and Mr. S. W. HARRIS, for the appellant.
Mr. B. OLIN, and Messrs. BLANCHARD & SILVER, for the appellee.
This was indebitatus assumpsit upon the common counts, brought by Morey against McEwen, to recover for a quantity of corn sold and delivered by the former to the latter. A trial was had upon issue joined, before a jury, terminating in a verdict and judgment for plaintiff. Defendant brings the case to this court by appeal.
The first point made is, that there is a total variance between the contract as set out in the special counts, and the proofs. This point is not tenable. There are no special counts in the declaration. It originally contained three counts, preceding the regular common counts, which were neither special counts, nor in exactly the ordinary form of the common counts, but approaching nearer to those of that character than to special counts. To these first mentioned counts the defendant filed a general demurrer, and then the general issue to the same. Plaintiff's counsel moved the court to strike the demurrer from the files, but the court, overruling that motion, sustained the demurrer to the second and third counts, and overruled it as to the first.
The first count is, in substance, an indebitatus count; but, instead of following the proper form, it alleges that defendant was indebted to plaintiff in a sum stated, for the value of six hundred and seventy-four 6/56 bushels of corn, before that time purchased of the plaintiff by the defendant at the highest market price for similar shelled corn in the city of Morris, at the time of delivery; that on, etc., said market price for such corn being about eighty-two cents per bushel, and being so indebted, he, the said defendant, in consideration thereof, promised the said plaintiff, etc.
It is essential that the indebitatus count, for goods sold and delivered, should aver that they were sold and delivered to the defendant at his request. 1 Chit. Pl. 345, 346; Porter v. McClure, 15 Wend. 189. Such an averment is lacking, and upon special demurrer the count would certainly be bad. The plaintiff, however, could not recover upon it by showing a sale and delivery of corn at another place than Morris, and under a contract that did not specify any price at any place. The two counts to which the court sustained the demurrer, must be regarded as out of the declaration so far as the question of variance is concerned. The remaining counts in the declaration were the common counts in the usual form, for goods sold and delivered, money had and received, etc. No question of variance can properly arise in the case, and the only question that could arise in this particular, would be as to the adaptation of the common counts to the case made by the evidence.
The original verbal contract between the parties was simply a request on the part of the defendant that the plaintiff, when he got ready to shell his corn, would haul it to defendant's warehouse in Seneca, and the latter would make it satisfactory to plaintiff as to price. This was the substance of the contract, as testified to by both parties. The plaintiff complied, and delivered at the place designated six hundred and seventy-four bushels, which were received and accepted by defendant. There was nothing in the conversation out of which the contract springs, about the plaintiff having the market price at Morris, or having an option as to time of fixing the price; neither was any specific quantity agreed upon which plaintiff was to deliver, nor was payment to be made otherwise than in money. In such case, the law will imply a promise on the part of the defendant to pay the plaintiff the market value of the corn at the time and place of delivery, for which a recovery may be had under the common counts.
Upon the trial, the defendant introduced in evidence the following writing:
“SENECA, ILL., Aug. 31, 1869.
Received from S. Morey forty-five bushels fifty pounds of shell corn, subject to market price for corn in Seneca, on return of this receipt by the 15th day of October, 1869, less two cents per bushel for first thirty days, or part thereof, and one cent additional per bushel for each succeeding thirty days, or part thereof, risk of fire and heating excepted.
MCEWEN & DOW.”
Upon the back of which appears a memorandum of dates and a column of figures, without any words to connect the same with the terms on the face of the instrument These indorsements can only be understood by the aid of extrinsic evidence, and by which it was shown to mean the number of loads of corn and the time and quantity of each load delivered. The defendant gave evidence tending to show that this receipt was given by his clerk to the plaintiff at the time it bears date, and of the delivery of the first load; that plaintiff produced it and had each successive load indorsed upon it. While the plaintiff testifies, and is in some degree corroborated by other testimony, that when he had finished the delivery of the corn he asked for a memorandum of what he had delivered, and that this paper was furnished him in pursuance of that request; he swears, positively, that he never assented to the terms upon the face of the receipt, and did not even know what they were until a considerable time afterwards, and that he never called for any receipt.
If the plaintiff only called for a memorandum of quantities of corn delivered, and this paper was handed to him in pursuance of that request, and he retained it as the memorandum called for without knowing that it purported to be a special contract, and he did not otherwise assent to it than by so retaining it, then there was no such meeting of minds, by acceptance, as will constitute a contract.
It was insisted below, as appears by instructions asked on behalf of defendant, and is so here, that the receipt given in evidence constituted a written contract covering the entire subject matter, merging all previous and contemporaneous negotiations, and affording the only basis of recovery.
It is essential to a valid contract that there should be a meeting of the minds of the contracting parties. The usual mode of manifesting that result is by the signature of the parties. But it is the settled law, that if a party, without negligence, sign and seal one instrument, actually supposing it to be another and wholly different one, he will not be bound by, and may avoid it, even at law; and...
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