Wilder v. Colby

If, in an action for goods sold and delivered, the declaration alleges that the defendant owes a certain sum, and the plaintiff’s evidence shows that the goods were sold on credit, which had not expired at the date of the writ, the defendant may rightly ask the judge to rule that the action cannot be maintained, on the ground of a variance between the declaration and the proof, although the answer contains a general denial only. In an action for goods sold and delivered, it appeared that the plaintiff consigned goods to the defendant for sale on the plaintiff’s account; that, subsequently, the plaintiff wrote requesting the money for the goods sold, and a return of all the goods unsold which the defendant did not wish to buy; that the defendant returned the money for the goods sold, a portion of those unsold, stated that for the rest a certain sum was due, and offered to pay it by his promissory note on four months, or to return the goods. The plaintiff wrote requesting him to send the note, but received no reply. Held, that, in the most favorable view for the plaintiff, the sale was on a credit of four months, and not for cash.

Contract. Writ dated June 3, 1881. The declaration was as follows: The plaintiff says the defendant owes him $57.10, with interest thereon from the 8th day of February, 1881, for 1400 cigars sold and delivered to him. Answer, a general denial. •Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, which, after stating that the pleadings might be referred to, was, in substance, as follows: The plaintiff offered evidence tending to show that on June 7, 1880, he consigned to the defendant $294 worth of cigars, at prices named in the bill of consignment, to be sold by the defendant on his account, and the proceeds remitted; that on October 5, 1880, the defendant sent him $45 as the proceeds of cigars sold; that, some time before the middle of January 1881, he wrote to the defendant, asking him to send the money for what cigars he had sold and to return all the cigars that he did not desire to purchase; that, in answer to this, on January 31, 1881, the defendant returned to the plaintiff cigars worth, at the consignment price, $141.90, and that, on February 8, he sent him a check for $50, making $236.90 in cash and in cigars returned, and a statement, headed “ Charles W. Wilder, Jr. to F. A. Colby, Dr.,” which contained items on the debtor side, of cash and cigars returned, to the amount of $236.90, and on the credit side were the words, “ By goods June 7,1880, $294. Due $57.10.” Upon this statement were written the following words: “ Chas. W. Wilder, Jr.: Dear Sir: The above is statement as I have it on my books. I have kept about $57 worth of the cigars to sell. I will keep them and pay you in four months, as I have always done, or I will return them to you. F. A. Colby.” The plaintiff also testified that he wrote the defendant to send him a note for the amount due, as per this account, but received no reply; and on February 21, 1881, he wrote him, “I am anxious to close books on last year’s business and accept your proposition to do so. Please send me your note at 4 mos. from this date, $57.50; ” that he received no reply to this, but, on March 7, he received from the defendant a postal card stating that the defendant’s shop was burned on February 15. The defendant introduced evidence tending to show that on February 15, 1881, the cigars, the price of which, at $57.10, was referred to in his statement of February 8 as due, were burned with his store. The defendant contended that the evidence of the plaintiff, if it tended to prove any contract of sale, proved one upon a credit of four months from February 8, 1881, and that there was, therefore, a variance between the evidence and the declaration, and that the plaintiff could not recover, as the suit was, brought before the expiration of the said four months, and asked the judge to rule, upon the evidence, that there was a variance between the evidence of the plaintiff relating to any sale and the declaration; also, that, under the evidence of the plaintiff, the action could not be maintained, because it appeared that it was begun before the time of the credit set forth in the contract proved by the plaintiff had expired. The judge declined so to rule, and submitted the case to the jury, with instructions, which were not excepted to by the defendant. The jury returned a verdict for the plaintiff for $59.72; and the defendant alleged exceptions.