A Treatise On the Law of Carriers : As Administered in the Courts of the United States And England
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The Railroad,' in which the authorities are fully stated by Cowen, J. The declaration was upon the contract to carry the plaintiffs' trunk, and money which was contained in it. It turned out, upon the proof, that the trunk did not belong to the plaintiffs, though the money did.
"The proof," said the learned judge, "is, at most, of a contract with the plaintiffs to carry the money only. The declaration, then, fails in describing correcUy a special executory contract, wherein great exactness is a...lways demanded. Where the decla- ration is on a promise to do several things, and onl}' one is proved, this is a variance." But the plaintiffs were allowed to amend, so as to, show a contract to carry the money only, as the misde- scription amounted only to a trivial variance in point of form.
§ 753. So if the declaration in assumpsit upon the contract state it to be absolute, when the proof shows it to have been in the alternative, the plaintiff cannot recover,'notwithstanding the party who, under the agreement, was to have the option of de- ciding, may have determined his option ; for the mode of execut- ing the contract could not change the original contract itself.* And where it appears by the terms of a contract, for the breach of which the action is brought, that it was at the option of the defendant to deliver this or that quantity of goods at one time, and the remainder at another, it should be so stated.^ And where the contract was in the alternative, to transport fifteen or twenty tons of marble from one place to another, it was held that it must be stated in the declaration accoi-ding to its terms; and if it be stated as an absolute contract for the transportation of twenty tons, and not fifteen or twenty tons, the variance is fatal.
What to read after A Treatise On the Law of Carriers : As Administered in the Courts of the United States And England?
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To quickly assess the difficulty of the text, read a short excerpt:
The Railroad,' in which the authorities are fully stated by Cowen, J. The declaration was upon the contract to carry the plaintiffs' trunk, and money which was contained in it. It turned out, upon the proof, that the trunk did not belong to the plaintiffs, though the money did.
"The proof," said the learned judge, "is, at most, of a contract with the plaintiffs to carry the money only. The declaration, then, fails in describing correcUy a special executory contract, wherein great exactness is a...lways demanded. Where the decla- ration is on a promise to do several things, and onl}' one is proved, this is a variance." But the plaintiffs were allowed to amend, so as to, show a contract to carry the money only, as the misde- scription amounted only to a trivial variance in point of form.
§ 753. So if the declaration in assumpsit upon the contract state it to be absolute, when the proof shows it to have been in the alternative, the plaintiff cannot recover,'notwithstanding the party who, under the agreement, was to have the option of de- ciding, may have determined his option ; for the mode of execut- ing the contract could not change the original contract itself.* And where it appears by the terms of a contract, for the breach of which the action is brought, that it was at the option of the defendant to deliver this or that quantity of goods at one time, and the remainder at another, it should be so stated.^ And where the contract was in the alternative, to transport fifteen or twenty tons of marble from one place to another, it was held that it must be stated in the declaration accoi-ding to its terms; and if it be stated as an absolute contract for the transportation of twenty tons, and not fifteen or twenty tons, the variance is fatal.
What to read after A Treatise On the Law of Carriers : As Administered in the Courts of the United States And England?
You can find similar books in the "Read Also" column, or choose other free books by Robert Hutchinson to read onlineMoreLess
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