Wood v. Edwards

a plaintiff can-a^impHed' ™ taffof°goods hhnVtoetL fendant, where istins written contract, under seal, and in part performanee of which the goods were delivered. mounts81 to. a¡ m¡áding°rofra an agreement, intended as a uhstitute for an existing agreement between the same parties, was drawn up, and sent to the de» mdant, who approved of it, and promised to execute it; but it was not executed by the plaintiff: t was held to be inoperative, for want of consideration and of mutuality. Whether, if the complete performance of a contract to deliver goods, is prevented by an act of le government, and the defendant refuses to accept the residue of the goods, after the time stipuited had past, the plaintiff can sue for and recover for the part he had delivered, as if the con•aot were rescinded? Quare.

THIS was an action of assumpsit, brought to recover he value of a quantity of plaister stone, delivered by the ilaintiff, to the defendants, tried before Mr. Justice Van Yess, at the Cayuga circuit, in July, 1&20. The declaraion, which was entitled of January term, 1820, contained he usual counts for goods sold and delivered, and moiey accounts, and on an account stated. The defendiiii . . nts pleaded the general issue, and the statute of limita- . lOnS. The plaintiffs gave in evidence an agreement under seal, lated August 13,1813,between the plaintiffs and Edwards, me of the defendants, by which the plaintiffs agreed to sell and deliver to E. or his assigns, at or near the head o: QayUga Lake, on or before the first day of February then next, 800 tons 'of plaister stone, and to cause th< same to be sufficiently secured from the weather ; and E agreed and promised to pay the plaintiffs, on or before th< first day of June then next, five dollars per ton for the plaister, and half the expense of weighing it, &c; I was further agreed between the same parties, that the de fendant E. should, on dr before the delivery of any part o the plaister, give to the plaintiffs approved security, for th< payment of the sum of four thousand dollars, at thd time above mentioned, at the store of Wood and Hoskins, ii the village of Union Springs. The plaintiffs also gave it evidence an instrument in writing, executed by Bemen and Keeler, the other defendants, under their hands ant seals, dated September 2, 1813, by which they covenantee and agreed to be jointly bound and held with the defendan E. to fulfil the contract, first above mentioned, on the par of E., and to be considered as parties to that agreement and to execute the same as soon as an opportunity woult permit j and they further ■ agreed to be concerned; with E in the contract, and thereby bound themselves to the fulfil ment thereof. It was admitted, that soon after the 27th of September 1813, the plaintiffs commenced the delivery of the plaiste to the defendants, and that in the course of about a montl following, they delivered to the defendants, 324 tons an< three fourths, parcel of the 800 tons; so agreed to be de livered. The plaintiffs also gave in evidence a letter from Ed wards, dated Berkshire, Sept. 20,1813, in which he writes “ Mr. Asa Bement has concluded to become intereste< with me in the contract for plaister which I entered inti with you on the 13lh of August last. I will inclose a lini from him- Our company now is, A. Bement, Lewis Keeler and myself. We wish you to write as to the security I, b; the articles, was to make; whether Mr. Bement and Mr Keeler will be approved of by you, as sufficient, and fix i time and place where we shall make it. We wish,, if yoi are willing, that you would now determine whether w take the plaister at five dollars, or you be interested with us in taking it through, as, by our articles, you have a right to do, if you choose,” See. On the 15th of September, 1813, Bement wrote a letter to the plaintiffs, stating, that he had agreed to become interested with Edwards in his contract with "the plaintiffs. It appeared that about the 1st of January, 1814, the terms of a contract between Wood and Edwards, were reduced to writing, a copy of which was taken by E. for the purpose of consulting his partners in Berkshire, and if they approved of it, he was to inform the plaintiffs thereof. This contract, which was unexecuted, .was produced, under a notice given to the defendants for that purpose. It purported to be between two of the plaintiffs, W. and H., and the defendants E. and B., and provided an entire new agreement, fixing the price of the plaister at three dollars per ton, and a partnership between the parties in the transportation and sale of it. The plaintiffs next gave in evidence a letter from Edzvards, dated January 10th, 1814, to W. and H., stating, that B. and K., with himself, had agreed to accept the proposal of the settlement of their plaister .contract, made by Mr. Wood to him, that day, a week ; and that he, E., expected to meet the plaintiffs at the Salt Springs, on Monday the 17th, to exchange writings, Sic. Another letter from the defendants to the plaintiff, dated January 29, 1814, staled, that they were willing to settle their differences by arbitration. On the 15th of February, following, W. offered to deliver to the defendants all the plaister he had at the head of the lake, being two dr three hundred ton?, but the defendants refused to accept it. From the evidence on the part of the defendants, it appeared that after the proposed contract in Janzmry, 1814, Wood and Edzvards differed in their construction of it, which was, probably, the reason why it was not executed. Evi- • dence, as to some other facts, was also given, which it is unnecessary to state. The jury found a verdict for the plaintiff, ■for two thousand three hundred and fifty-eight dollars and thirty-seven cents, being the value of three hundred and twenty-four tons and three fourths of plaister, actually delivered, at five dollars per ton, with interest, subject to the opinion of the Court, on a case containing the facts above stated-