Chamberlin v. Perkins , 55 N.H. 237 ( 1875 )

The principal question to be settled arose in the second of the two actions. In this case the declaration was for "corn, flour, and divers goods, wares, and merchandise sold and delivered to the defendant," and for "interest on certain sums due and owing from the defendant." At the trial, the defendant alleged that certain drafts had been given by the defendant and received by the plaintiffs in satisfaction of this demand, so that this demand was paid; and this was not denied by the plaintiffs. Thereupon the plaintiffs were permitted to amend by adding a count founded upon the drafts, and on trial verdict was recovered for their amount; and the question presented by the case is, whether that amendment was admissible.

I confess that I am unable to see on what principle this could be done. The defendant alleged that the debt declared for had been paid, and the plaintiffs did not deny that such was once the understanding. The difficulty was not that the cause of action had not been correctly described, that some change was necessary to adapt the declaration to the evidence, or that any allegation of matter essential to the maintenance of the action had been omitted. The defence was, that there was no cause of action. Would it aid this difficulty at all to describe this cause of action differently? Whatever form you give to it, in whatever terms you describe it, always you are met by the same difficulty, that the cause of action does not exist, — that the debt has been paid. What the plaintiffs proposed to introduce was a count in some form or other in which they should declare for indebtedness accruing to them from the fact of their having been obliged to pay money to take up the draft which the defendant averred had been received by them on the express agreement that it should be a payment of the cause of action originally declared upon. It could not, therefore, be the same cause of action, because that no longer existed. I think no case will be found in which the doctrine of amendments has been made available to revive a defunct cause of action by describing it anew.

The case of Burnham v. Spooner, 10 N.H. 165, was one in which there was no pretence that the note in question had been accepted in satisfaction of the debt; and I think the same will be found true in the other cases, where, owing to some difficulty about the validity of the note, the party has been permitted to amend his declaration by declaring on the original cause of action, which was the consideration of the note.

The whole doctrine in regard to the matter of payment of the existing debts by the acceptance of promissory notes or bills of exchange expressly agreed to be accepted in payment and satisfaction, appears to me to be in no very satisfactory condition; and if it were necessary for the settlement of this case, a somewhat lengthened discussion of it might be interesting.

The defence set up by the defendant was, that he gave his promise in writing to pay the amount of this debt to such person as the plaintiffs should order it to be paid to, and that this promise was accepted in full satisfaction and discharge of the debt declared on. "It is true," he says, "the plaintiffs, relying upon this promise, ordered this money to be paid to a third person; but when my written promise was presented to me, I refused to perform it, and the plaintiffs have been obliged to pay back what they received for it, and have my acceptance here to surrender. The original debt is paid by this broken promise, and the promise I do not propose to fulfil if I can avoid it."

It appears to me that this difficulty admits of being solved, and should be solved, by the common and elementary principles of the rescission of contracts. This transaction is entirely between the original parties. The defendant, having broken the promise in consideration of which he says, the plaintiffs agreed to discharge the original debt, the plaintiffs elect to consider the contract as rescinded, and so electing, bring their action to recover the original debt. No third party is injured by the transaction, and the parties themselves are restored exactly to their original position. Fuller v. Little, 7 N.H. 535; Drew v. Claggett, 39 N.H. 431; Luey v. Bundy,9 N.H. 298; Danforth v. Dewey, 3 N.H. 79. Every condition necessary to the rescission of a contract appears to have been fulfilled and I can see no reason why the plaintiffs should not have been permitted to recover on their original count, of course bringing their drafts into court to be disposed of as the defendant's safety required.^* As this result has been practically reached by the proceedings had, I think the verdict ought not to be disturbed. This view renders the question as to the statute of limitations, and also the question as to the amendment, of no importance.

^* BELL, C. J., in Wheeler v. Whipple, Mer. Co., unreported.

RAND, J., C. C. I am inclined to think that the main difficulty in this case may be removed by a resort to the doctrine of the rescission of contracts; although, if courts were disposed to insist upon the utmost precision of logic, it might not be easy to see how an extinguished contract could be revived by the rescission of another contract. But it may be considered as settled in this state, that, where goods have been sold and delivered upon an executory contract, and the party receiving the goods fails to comply with its requisitions, the injured party may consider it as rescinded, and bring his action of indebitatus assumpsit to recover the value of the goods sold. And when a party refuses to perform a contract which is void by the statute of frauds, the other party may recover back whatever property he has delivered in part execution of the contract. And where a party who is indebted to another delivers goods and money in part payment, and the creditor afterwards refuses to account for them upon the debt, and requires and receives payment in full, the debtor may maintain assumpsit for the goods and money so delivered in part payment.

And when A purchased of B two ploughs, and in an adjustment of account between them the value of the ploughs was allowed to B, who afterwards refused to deliver them, and converted them to his own use, for money had and received. And I think the case of Sloman v. Cox, 1 Cromp. Mees. Roscoe 471, is a case in point. That was assumpsit sit upon two bills of exchange. The first bill, dated the 16th of March, 1833, and payable three mouths after date, for the sum of £ 18, was drawn by the defendant upon and accepted by a person named Jones, and endorsed to the plaintiff. The second bill, dated the 20th of June, and payable two months after date, was also drawn by the defendant upon and accepted by Jones, and endorsed to the plaintiff. At the trial before Lord LYNDHURST, C. B., it appeared that the first bill having been dishonored, the plaintiff agreed to take £ 8 in cash, and another bill for £ 10; and accordingly the second bill was drawn, and endorsed to the plaintiff, and the bill for £ 18 was given up to the acceptor. After the acceptance of the second bill, and before it became due, Jones, the acceptor, without the concurrence of the defendant, but while the bill was in his hands, altered the date of the bill from the 20th of June to the 24th. The bill for £ 18 was subsequently obtained by the plaintiff from the acceptor. PARKE, B., said, — "The defendant is liable to the plaintiff, as the drawer of a bill, for £ 18. Being sued upon that bill, he shows, in order to prove payment, that in consequence of an agreement with the plaintiff he gave him £ 8 in cash and a bill for the remainder. That bill turns out to be, in fact, of no value, having been vitiated by an alteration. The defendant, therefore, not being liable on the second bill, still remains liable upon the first." In the present case equity is very manifestly in favor of the verdict, and I can see no legal objection to it. The exceptions must be overruled, and there must be

Judgment on the verdict.