Starratt v. Mullen

• Decision Date: 28 February 1889
• Citation: 20 N.E. 178,148 Mass. 570
• Parties: STARRATT et al. v. MULLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 570

20 N.E. 178

STARRATT et al. v. MULLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1889

COUNSEL

E.M. Bigelow, for plaintiffs.

T.J Gargan and C.H. Sprague, for defendant.

OPINION

HOLMES J.

Whether the agreement set up by the defendant could have been enforced or not, the plaintiffs were at liberty to perform it if they saw fit; and, if they furnished the clothes in pursuance of it, they could not recover in this action. Marvin v. Mandell, 125 Mass. 562. The contract is not relied on as an executory or binding undertaking, but simply to show that the plaintiffs delivered the clothes upon an executed consideration, in which case, as in that of a gift, they did not deliver them for pay to be received thereafter.

The ruling as to the burden of proof was correct. Phipps v Mahon, 141 Mass. 471, 5 N.E. 835. We shall not repeat the reasoning of that decision, with which we remain satisfied; but, as it was questioned at the bar, we shall add a few words to what was said then. Undoubtedly many matters which, if true, would show that the plaintiff never had a cause of action, or even that he never had a valid contract must be pleaded and proved by the defendant; for instance, infancy, coverture, or, probably, illegality. Where the line should be drawn might differ, conceivably, in different jurisdictions. But in the narrowest view of what constitutes the plaintiff's case, if he declares on a special contract, he must prove its terms as alleged; and on the same principle, if he declares on the common counts, he must prove that the goods or services were furnished for a reward to be paid thereafter in money. "The plaintiff is bound to prove such a sale and delivery as will raise a debt payable on request." PARKE, B., in Cousins v. Paddon, 2 Cromp., M. & R. 547, 5 Tyrw. 535, 543.

Hence it was settled in England that even under the Hilary rules, if the defense was that the goods, although delivered to the defendant at his request, were delivered as a gift, or under a contract to pay in beer, or upon a consideration previously executed by the defendant, the proper course was to plead the general issue, and that a special plea would be bad upon special demurrer. Jones v. Nanney, 1 Mees. & W. 333; Grounsell v. Lamb, Id. 352; Morgan v. Pebrer, 3 Bing.N.C. 457, 466, 467; Wilson v. Story, 4 Jur. 463; Collingbourne v. Mantell, 5 Mees. & W. 289; Gardner v. Alexander, 3 Dowl. 146. See Marvin v. Mandell, ubi supra. So as to special contracts. Brind v. Dale, 2 Mees. & W. 775; Kemble v. Mills, 1 Man. & G. 757, 770; Nash v. Breese, 12 Law J.Exch. 305.

The cases cited answer the argument that payment in advance would have to be pleaded and proved as payment. Payment in advance would mean that the goods were furnished upon an executed consideration, in pursuance of an antecedent duty, and that there never was a debt due for them for a single instant. It has been held in England that, even where the transaction was a cash sale, and the payment was made at the same moment that the goods were furnished, the proper plea in debt after the Hilary rules was nunquam indebitatus. Bussey v. Barnett, 9 Mees. & W. 312...