Stange v. Clemens

• Decision Date: 20 October 1868
• Citation: 17 Mich. 402
• Court: Michigan Supreme Court
• Parties: Charles W. Stange v. Milo Clemens et al

17 Mich. 402

Charles W. Stange v. Milo Clemens et al

Supreme Court of Michigan

October 20, 1868

Heard October 16, 1868; October 17, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of assumpsit, brought to recover damages for the breach of a contract.

The declaration is as follows:

"For that heretofore, to wit: At the city of Detroit, in said county and state, on the 22d day of May, A. D. 1867, the said plaintiffs entered into a contract, or agreement in writing, to and with the said defendant, to deliver fifteen thousand cubic feet of block limestone, more or less, at the dock situated at the foot of Rivard street, Detroit, in said state of Michigan, at the rate of not less than six thousand cubic feet each and every month, from and after the date of the delivery of the bill, bills, or specifications as below, until the whole amount was delivered, at fifty-five cents per cubic foot, to be delivered, measured, and marked with paint, and according to the bill or bills and specifications to be furnished by the defendant to the plaintiffs. And that, in consideration of the above, the defendant agreed, to and with the plaintiffs, to receive and unload the stone above described, at the place, in the manner, and in amount more or less, as above set forth; and agreed to pay the sum of fifty-five cents for each and every cubic foot thereof when delivered in manner and form specified, and payable as follows, viz.: The amount in full and in cash, at the rate aforesaid, for the first two loads of stone, when so delivered, and the balance each and every month, at the end thereof, of so much stone that may have been delivered during the same, in the same manner as said Charles Stange, the defendant herein, could get payments from the city of Detroit, under a certain contract for work, labor and materials provided for the new city hall of said city (so called). The freight, however, upon the said stone to be paid by the defendant, on each and every arrival of stone. That in pursuance of the said contract and agreement, the plaintiff did proceed to deliver fifteen thousand cubic feet of block limestone, more or less, to the defendant, at the dock situated at the foot of Rivard street, Detroit city, in said county and state, and at the rate of not less than six thousand cubic feet each and every month, from and after receiving the said bill, bills, or specifications, as aforesaid, from the defendant, and the said stone being delivered, measured, and marked with paint, according to bill or bills, or specifications furnished as aforesaid. But that the said defendant then refused, and has at all times refused, and still does refuse, etc. By means whereof the defendant has become liable to pay the plaintiff, etc."

To which the common counts were added. The defendant pleaded the general issue.

Judgment was rendered in favor of plaintiff.

The following errors were assigned:

"First. The first count of said amended declaration is uncertain and insufficient, by reason of the use of the words, 'more or less' therein.

"Second. Said first count of said amended declaration is defective, uncertain, and insufficient, in not setting out how the said Stange was to 'get payment from the city of Detroit, under a certain contract for work, labor and materials furnished for the new city hall, of said city of Detroit,' upon which the liability of said Stange was to depend.

"Third. Said first count of said amended declaration is uncertain and insufficient, in not setting out the terms or the legal effect of said alleged contract for work, labor, and materials for said new city hall.

"Fourth. Said first count of said amended declaration is uncertain and insufficient, in not setting out what were the 'bill, bills, or specifications,' stated and referred to therein.

"Fifth. Said first count of said amended declaration does not set forth a state of facts which renders the plaintiff in error liable in law, and is otherwise informal and insufficient.

"Sixth. Said first count does not contain the allegation of a promise or undertaking by the defendant sufficient to sustain the action thereon.

'Seventh. The judgment in said cause being general upon the whole declaration and for other reasons, is bad, and is not sufficient in form or substance."

Judgment affirmed, with costs.

Levi Bishop, for plaintiff in error:

1. The first count of the declaration is bad. To agree to deliver a quantity, more or less, of stone, does not constitute a binding obligation. It is void for uncertainty. While one party might claim that the quantity should be more, the other might claim that it should be much less, and between such adverse claims the alleged written agreement would not fix with certainty the legal rights of the parties. The measure which the parties have named is an uncertain one, and there is no averment in the declaration, which, being sustained by proof, could supply the defect.

2. The defendant, it seems from the averments, was to pay the plaintiffs in the same manner that he should get his pay "under a certain contract," which he had for work to be done on the new city hall in Detroit. How was that? What was the assumpsit? What was the undertaking of the defendant? Here the very gist of the action is left a complete blank. We are charged with having broken an agreement, but we are not told what the promise or agreement was. Of course, it will not be forgotten that the plaintiff must set forth a cause of action in his declaration.

Not only have the plaintiffs not set out how the defendant should or was to get his pay from the city, but they have not even stated how he in fact got it, or whether he ever got it at all; so that the declaration is bad in the two most material averments upon which a liability on the part of the defendant could arise.

3. The contract of the defendant with the city for building the new city hall, referred to in the declaration, was as much a part of the alleged agreement between the plaintiffs and defendant, as was the latter agreement itself; and it could, in pleading, be no more passed over, as is done in this declaration, than could a material part of the latter agreement. The court can not see whether it is a binding obligation or not, or whether it gives the plaintiffs a right to recover. The plaintiff must always, in his pleading, show a good cause of action, or he must fail.

6. The common counts are added to the counts complained of, but the judgment being general on the whole declaration, and the special count being bad, the judgment must be reversed under the familiar rule in such cases.

Where there are several counts in a declaration, and a general verdict is rendered on them all, the judgment must also be entire, in which case, if one of the counts be insufficient, judgment will be arrested, or a writ of error be sustainable, and the judgment will be arrested in toto, and no venire de novo will be awarded: 1 Chitty's Pl., 411.

H. M. & W. E. Cheever, and S. Larned, for defendant in error:

1. The first assignment of error is based upon the use of the words "more or less," in the first count of the declaration; and it is insisted that the use of these words renders that count "uncertain and insufficient."

These words occur three times, each time in connection with the quantity of limestone to be delivered. While under certain circumstances the words may be material, when from the context they are necessary to fix and accurately determine a quantity--as where A sold B all the goods in a certain store, being one thousand pounds of sugar, more or less--we submit in the connection in which they are used in this declaration, they are surplusage.

2. The second assignment is, that the failure to allege "how Stange was to get payment from the city of Detroit" upon his contract, etc., renders the count "uncertain and insufficient." A simple reference to the language of the...