Russell v. Nicoll

By the Court, Marcy, J.

It was insisted on the argument that the contract declared on was within the statute of frauds, and void for not being reduced to writing, and signed as th& statute directs. This objection is not sustainable. If the contract be within the statute, it is very clear that the signing by the defendants is a compliance with its requirement. (Egerton v. Mathews and another, 6 East, 307. Sanderson v. Jackson and another, 2 Bos. Pul. 238.)

The main difficulty in this case is to determine the real-character of the contract. On the one hand, it is said to be, an actual and unconditional sale of the cotton, with a warranty that it should arrive at the port of New-York by the first of June, 1825; on the other, that it is an agreement to sell, on condition that it should arrive before that time. It is very clear that if the plaintiffs had brought trover for the cotton, they could not have sustained their action. The cases of M’ Donald v. Hewett, (15 Johns. Rep. 349,) Rapelye & Smith v. Mackie others, (6 Cowen, 25,) and Shepley v. Davies and another, (5 Taunt. 607,) are decisive authorities upon this point. The contract was therefore executory and not executed. Something was to be done before the title to the cotton passed from the defendants to the plaintiffs. It was tobe brought to New-York, weighed there, and paid for by the plaintiffs, after making the deductions stipulated in the agreement: The defendants could retain the possession of it, even after it arrived in New-York, for the purpose of weighing it and until it was paid for by the plaintiffs. The payment and delivery were dependant and simultaneous acts. Apply to this property the test mentioned by Spencer, J. in the case of M’Donald v. Hewett, who would have been the sufferers if ' the cotton had been lost on its voyage from New-Orleans to New-York, or while at the latter place, before it had been' weighed ? Beyond all question, the loss would have fallen on ffie defendants.

*119 ■ The contract being executory, it is important to determine what was to be done by the defendants towards executing it; because it is for not doing what they had stipulated to do, or cause to be done, that they are liable, if at all, to the plaintiffs for damages. If the contract be executory, and such it evidently is, the same interpretation must be given to the word sold that was given to it in the case of Boyd v. Siffkin, (2 Campb. 326.) It means contracted to sell. Giving it this interpretation, I understand the contract to be an agreement on the part of the defendants to sell five hundred bales of cotton, purchased on their account at Huntsvill, and to deliver it on its arrival at New-York, at any time after making the contract, and before the first day of June thereafter. It could not be delivered until its arrival, and its weight ascertained. The stipulation by the defendants to deliver it, cannot be considered absolute: it was conditional, and they are not chargeable for the non-delivery of it until the event had happened which the parties must have expected to happen before the delivery, viz. its arrival at the port of New-York.

It was urged on the argument that, by the agreement, the defendants had stipulated that the cotton should arrive within the period specified in the contract. Such, I apprehend, was not the object of designating the time ; but, as the fulfilment of the contract, or, in other words, the actual transfer of the property contracted to be sold, depended upon the arrival of the cotton at New-York, an event not absolutely within the control of either party, and which might never happen, the period for its delivery, on condition of its arrival, was fixed, that the parties might know how long they were to remain under the stipulations of the contract. If the cotton should not arrive by the first of June, the plaintiffs were not bound to receive and pay for it, on the one hand; nor on the other, were the defendants under an obligation to deliver it. This appears to me to have been the object of a specification of time in the contract.

Eleven bales of cotton did arrive within the specified time, and the defendants refused to deliver them, because the whole five hundred bales were not received. Their views of the contract in this particular appear to roe to have been cor *120 rect. The contract was for five hundred bales; it was entire ; there was no obligation on the part of the plaintiffs to receive a less quantity than tile whole, and consequently none on the part of the defendants to deliver less than the whole.

The obligation to deliver and to receive must be reciprocal. This construction of the contract was resisted on the ’ argument, upon the ground that it imputed great folly to the plaintiffs in becoming bound to receive the cotton, however low it might be depressed in price; while the defendants could avail themselves of the advantage of its improved value, by preventing its arrival within the stipulated time. There is no proof nor pretence that any act was done by the defendants to retard the arrival of the cotton. If nothing was done to control the contingent event upon which the delivery was to be made, the benefit or loss likely to result from its happening was mutual; and if any thing was done to control it, the party injured thereby would have a remedy.

I see no cause for interfering with the decision of the judge at the circuit.

Motion to set aside nonsuit denied.