Dunham v. Baker

A "written p^"notCbe enlarged, or ^

In the Court below, T HE declaration stated, That the defendant, on the 5tii of June, 1800, promised, and agreed with the plaintiff, and the plaintiff with the defendant, that the plaintiff should have the defendant’s schooner, for a fishing voyage on the Northern and Eastern coasts of America ; and that the schooner should call at Hiannas harbour, on Cape-Cod, between the 1st and 10th of July, for the purpose of taking on board the plaintiff, him to transport to Norwich, previous to the 12th of July: That the plaintiff and defendant agreed, that the plaintiff should procure two fishermen, at the Cape, to go on the above mentioned voyage : That the defendant agreed to take them on board his schooner at Hiannas, with the plaintiff : And^that he agreed to have the schooner in complete order, and prepared with all the necessary implements for a cod fishing voyage, on or before the 12th of July. The declaration then proceeded to state, That the defendant made and executed to the plaintiff a memorandum, or writing obligatory, in the words and figures following : “ It is agreed between Timothy Baker, on the “ one part, and Daniel Dunham, on the other part, that said “ Dunham is to have the schooner Pasha ready for a fishing “ voyage, and at Norwich, on the 12ih day of July next, “ and to let said Baker and a crew take said schooner on a “ fishing voyage four months, on the lay, or rule of one “ fourth part of all the fish that is caught by said Baker, “ or such master as he may employ, and the crew onboard, “ deducting one eighth part of said fish for making, one “ sixty-fourth out of said quarter, or as perquisite to said “ master; also to find salt and provisions, and all the stores, “ and fishing-geer, and casks, aid master and crew a choose, agreeably to such rules as said Baker, or master# “ shall make -with said crew ; said Dunham is to clear said “ vessel at New-London for a fishing voyage, and find two “ men to go said voyage in her, and give the master half “ the bounty obtained. Dated this 5 th day of June, 1 800. l< Daniel Dunham.” The plaintiff then averred, That the defendant having specially promised to, and agreed with the plaintiff, that the schooner should call at Hiannas for the plaintiff, and the two men, and should convey them to Norwich, where the schooner was to have been delivered to the plaintiff for the purpose of a fishing voyage, the plaintiff did, on the 5 th of June, 1800, execute, a writing obligatory, wherein he promised to go the voyage, in person, or by his agent : And that, relying on tire defendant, to comply with and fulfil his part of the agreement, the plaintiff hired two men to go the voyage, made flakes, and other necessary preparations, for curing and drying fish ; and repaired, on the 1st of July, to the harbour of Hiannas, with his two men engaged for the voyage, and there waited 14 days for the defendant’s vessel to call for him ; but the defendant neglected to send his vessel to take the plaintiff, and the two men, and also to have her ready for a fishing voyage, on the 12th of July, and also to clear her for New-London. The defendant, having prayed oyer of the writings set forth in the declaration, pleaded, that ?in pursuance of his obligation, he stood ready the whole of the 12th clay of July named therein to let the plaintiff, and his crew, take the schooner on a fishing voyage, on the terms stated in the written contract ; to furnish two sailors ; and to fulfil the contract on his part; traversing that the plaintiff came to Norwich on the 12th of July, or in any way demanded the vessel ; and also traversing ; that the defendant promised that the vessel should call at Hiannas harbour, to take the plaintiff to transport him to Norwich. The plaintiff replied over the facts traversed; and the defendant demurred specially. ' The Superior Court adjudged the plaintiff's replication sufficient. contended, that this action was brought on an entire contract, part of which was alleged to be in writing, and part, by-parol ; that the written part was answered by the plea in bar ; and that to allow a recovery on the other part, would be to admit of an addition by parol to a written contract» The cases of Meres v. Ansell, (a) Preston v. Merceau, (b) and Alsop. v. Goodwin (c) were cited. It was also urged, that the parol contract was without consideration ; that the defendant was to gain nothing by going to Iliannas; and that this was not a case of mutual promises, Coggs v. Bernard, (d) was cited to shew the necessity of a eonside* ration. contended, 1. That the defect in the declaration was, at most, an informality, which it was too late for the defendant to take advantage of, after having pleaded over. He cited an anonymous case in Salkeld, (e) Mattravers v. Posset, (f) Thorp v. Thorp (g) and Hall v. Bond. (h) 2. That the parol contract was the foundation of the action ; and that the written contract was stated only to shew the extent of the injury, which the plaintiff had sustained. 3. That sufficient consideration appeared : The plaintiff was himself to be ready at Iliannas; he was to procure two fishermen there ; and he entered into a written agreement beneficial to the defendant.