Bunnel v. Taintor's administrator

Where the plaintiff declares on a special agreement, he must prove that agreement as he has stated it in his declaration. Therefore, where in an action by husband and wife, the plaintiffs declared upon a promise made to them jointly; and the proof was of a promise made to her before marriage, the variance was held to be fatal. So, where the plaintiffs declared upon an agreement of the defendant to pay them 1000 dollars, in a reasonable time; and the proof was of an agreement, that if the plaintiffs should reconvey to the defendant certain land, the defendant would pay them the purchase money, which was 1100 dollars, or so much thereof as the defendant should have received, the variance was held to be fatal. Qu. Whether indebitatus assumpsit will lie for land sold, on the basis of implied contract. Qu. Whether husband and wife can maintain indebitatus assumpsit, for a valuable consideration proceeding from the wife only.

This was an action of assumpsit, in two counts. The first was a general count for money had and received of Amelia, while sole and unmarried, for her use. The second was special, stating. That on the 1st of May, 1820, said Taintor was justly indebted to the plaintiffs, in the sum of 1000 dollars, for a certain tract of land in Branford, containing about eight acres, [describing it] which was long since sold and conveyed to said Taintor, by the plaintiffs, and was land owned and possessed, by said Amelia, while sole and unmarried; and said Taintor, being so indebted, assumed upon himself, and to the plaintiffs faithfully promised, in consideration of such indebtedness, to pay to them said sum of 1000 dollars, in a reasonable time. Non assumpsit was pleaded to both counts; and the cause was tried at New-Haven, August term, 1823. before Chapman, J. In support of the issue on the first count, the plaintiffs offered certain evidence, which the judge rejected. Under the second count, they then offered parol evidence to prove, that in 1811, Taintor conveyed to Amelia Foot, then a feme sole, the land described in the declaration, for the consideration of 1100 dollars; and that he then agreed with her, to repay her the purchase money, or so much thereof as he might have received, whenever she should reconvey the land; that in pursuance of this agreement, in May, 1820, after the intermarriage of Amelia with Bunnel, the plaintiffs, by a release deed, reconveyed the land to Taintor, who accepted of such deed, and agreed to pay the plaintiffs the value of the land, at that time, or so much of the purchase money as amounted to it, or the sum of 700 dollars, which the plaintiffs claimed to have proved, that Taintor admitted he had received. The plaintiffs also offered parol evidence, to prove, that after they had given Taintor such deed, be took possession of the land, and applied the rents and crops to his own use; and that he, at several times, admitted, that he owed the plaintiffs for the land, and had agreed to pay them for it. The plaintiffs also produced the deeds referred to. To the admission of this evidence the defendant objected. The judge admitted it under the second count, viz. the two deeds, the contract made at the execution of the first deed, and the admissions made by Taintor. In his charge to the jury, the judge said: “ This contract to repay the purchase money, on receiving a conveyance of the land, was, when made, within the statute of frauds and perjuries; but, by receiving a deed afterwards, it was taken out of that statute. It is opposed to no rule of the common law. To support the second count, the plaintiffs must prove an express agreement, made either with the wife, or husband and wife, to pay to both.” The jury found a verdict for the defendant, on the first count, and for the plaintiffs, on the second count. The defendant moved for a new trial, on the ground that the evidence adduced by the plaintiffs, was improperly received. contended, that the evidence received by the judge, under the second count, was inadmissible. 1. Because it was within the statute of frauds and perjuries. That it was originally within the statute, is not dented; but the claim is, that it has been taken out of the statute, by part performance; and the part performance relied upon, is, the execution by the plaintiffs, and the reception by Taintor, of the deed of May, 1820. To entitle a party to take the case out of the statute, on the ground of part performance, he must shew acts, which are not merely evidence of some agreement, but which unequivocally and satisfactorily prove the particular agreement in question. The terms of the agreement must distinctly appear, or be made out to the satisfaction of the court. Phillips v. Thompson & al. 1 Johns. Chan. Rep. 131. 149 Parkhurst & al. v. Van Cortlandt, 1 Johns. Chan. Rep 273. 284, 5. But does the release deed given by the plaintiffs, prove the agreement stated in the second count? It does not appear that this act was done in part fulfilment of, or in reference to, any agreement; much less does it shew what the agreement was. 2. Because if was to prove a promise made more than three years since, viz. in 1811, and therefore barred by the statute of limitations. Bunnel v. Taintor’s admr. 4 Conn. Rep. 568. 3. Because it went to prove a promise made to Amelia Foot, before marriage. The second count states a promise made to Jesse Bunnel and Amelia Bunnel, his wife. The jury cannot find a contract with husband and wife, on proof of a contract with the wife, when sole. 4. Because it was to prove a different promise from that set up in the second count; and that in two respects. First, it tended to prove a promise to Amelia Foot only, and not to the plaintiffs. Secondly, it tended to prove a promise with two alternatives, viz. to pay the plaintiffs the then value of the land, or so much of the purchase money as amounted to it, or 700 dollars, The promise stated in the second count was precise and specific, viz. to pay the sum of 1000 dollars. 5. The charge shews, that the evidence in question ought not to have been received; first, because the second count cannot be supported, by proof of a promise to Amelia Foot; and secondly, because it says an express promise must be proved; any certainly, that must be the promise laid in the declaration. contended, 1. That the case was not within the statute of frauds and perjuries, because there had been a part execution of the contract. After shewing that a contract has been performed on one part, you may go into parol evidence to prove what that contract was. Cone v. Tracy, 1 Root 479. Wells v. Deming, 2 Root 149. Chapman v. Allen, Kirby 399, 2. That the agreement on which the plaintiffs sought to recover, was made in 1820, within three years from the commencement of the action. The plaintiffs have resorted to what took place in 1811, only to shew what led to that agreement. 3. That the plaintiffs were not bound to prove an express promise, because the wife’s land was the meritorious cause or consideration, and her interest is made to appear expressly on the declaration. 1 Chitt. Plead. 19. Lewis v. Martin, 1 Day 263. The declaration is conformable to this idea. It shews the indebtedness of Taintor to Amelia, while sole and unmarried, and then avers, that “said Taintor, being so indebted, assumed upon himself, and to the plaintiffs faithfully promised,” &c. There is, then, no ground for the objection, that the land was sold to Amelia Foot, and not to the plaintiffs. 4. That if an express promise was necessary, the evidence conduced to prove an express promise; and the objection applies more to the weight of the evidence, upon which the jury have passed, than to its admissibility. The consideration money, which, by virtue of a special agreement, was to be paid for land, may be recovered under a general count for land sold and conveyed. Bowen v. Bell, 20 Johns. Rep. 210. 212. Brown & ux. v. Clark, cited 1 Root, 233. 1 Swift’s Dig. 415. In such case, the declaration must, of course, be supported, by proof of an express contract. Our action of book debt is only indebitatus assumpsit for goods sold and services rendered. But in this action, the articles charged are subject to a special agreement in to price, mode of payment, time of payment, &c.