Morey v. Homan

Redfield. J.

In this case the defendant insists there is a variance between the contract adduced in evidence, and the declaration : — that the qualification “ if well used” in the contract is applied to the first time piece furnished, and in the declaration only to the one subsequently to be furnished ; but the court think that, without doubt, the contract was intended to express a stipulation on the part of the plaintiff to use each and every time piece he should receive of the defendant well. The phraseology of the contract is very loose and indefinite, but such must be its only rational interpretation. The same may be said of the declaration. It is loosely and indefinitely expressed, but seems to be almost a picture of the contract, and can bear no other construction than that just put upon the contract.

The defendant has further moved in arrest of judgment on account of the defective manner in which the breach of the contract is alleged. The contract is in the alternative, either that the time piece shall keep time ninety days, or that defendant will furnish one that shall, upon the condition that plaintiff shall use them well. The breach omits to allege that the plaintiff used it well; but alleges that the one furnished did not keep time as promised by the defendant, and that the defendant was notified of this, and would not furnish any other. In the first place, it may be observed that this condition, as it. is called, annexed to the contract, “ if well used,” is only what the law implies in contracts of this kind, and is not necessary to be stipulated, and, if stipulated, does not vary the terms of the contract. It is like a stipulation that the time piece should be housed, or wound up, or not destroyed, neither of which would vary the contract, being already implied in the general terms of the contract, and, therefore, not *567 necessary to be noticed in the declaration. And a motion in arrest will never be entertained, when the requisite allegation is contained by implication in those which are used.

And it may further be seen that the allegation, that the time piece did not keep time “ as by defendant promised,” directly and explicitly refers to this qualification, for the defendant only promised that it should keep time “ if well used,” i.e. in that manner and that only. And if the requisite allegation may be considered to have been proved as a part of what is alleged, the motion in arrest cannot'prevail.

The distinction between those intendments which will be made in favor of pleadings on general demurrer, and on motion in arrest, may be illustrated by the case of a plea of justification in trespass under process of writ of attachment.

On demurrer to the plea it would no doubt be required that the defendant should at least allege that the writ was a legal v>rit of attachment, &c., but after verdict, the simple allegation that defendant had “ a writ, by virtue of which he arrested the body,” would no doubt be sufficient. For the court will not, after verdict, intend it was a defective writ or a writ of summons, either of which intendments would not be inconsistent with the allegations in the plea. But if the plea set forth a defective writ and not a writ imperfectly stated, it is bad in arrest even. Hence the rule that a verdict or default will cure a title defectively stated, but not a efe fective title.

Judgment of the County Court affirmed.

Royce, J. having presided at the trial in the County Court, did not sit.