Hume v. Walker

This bill is not like those where there has been a mistake in settling partnership accounts and a note given for the balance. The plaintiff alleges no mistake either in the substance of the contract or in the invoice, and he seeks no reformation of either document. On the contrary he says that it was part of the understanding that carriages in the hands of commission houses, although not sold, should be included in “ bills owing us.” No note has been given and no mistake of any kind is alleged, except that in estimating the amount due to the defendant under his contract and invoice as agreed they forgot to deduct five per cent as stipulated on finished carriages. If the plaintiff is right, that sum will be deducted from the amount remaining due under the contract. The plaintiff alleges in the bill that this is matter which may be proved by paroi, and this may be true, because the express statement of the mode of computation and the invoice must make the mistake in the figured- total apparent; but at all events no reformation is asked.

*551The real grievance is something which the plaintiff himself alleges to have been contemplated when the contract was made. The plaintiff and defendant have had to replevy from commission men carriages which are charged for under “ Bills owing us.” This, the plaintiff says, was contemplated and was to be counted as a “ loss ” under the contract. If so, it will be allowed for in the defendant’s suit for the balance alleged to be due to him. The bill prays among other things for an account but discloses no need of equitable relief on that ground. Taking the bill on demurrer, we must assume that it expresses the plaintiff’s case as he is content to leave it. He has not asked to amend, and the bill has been dismissed. It is only fair that he should be held exactly to his pleading, and, as the case stands, we are not prepared to say that the judge of the Superior Court was wrong.

Bill dismissed.