M'Combs v. M'Kennan

A parol agreement by one party to a covenant to waive the performance of a certain part of the covenant by the other party, is not such an alteration of the contract as will render necessary a change in the form of action upon it. Upon a contract to deliver a specific article at a particular time and place upon the payment of the price, if the article be delivered, and the price be not paid, the party delivering it may remove it, and sell it to another, and charge the party failing to pay with the difference in price, as a measure of damages; and under such circumstances, the receipt of money after the time for delivery by*the party delivering, on account of the contract, will not preclude him from recovering damages.

ERROR to the District Court of Allegheny county. James M’Kennan against George M’Combs. This was an action of covenant upon an agreement, by which the plaintiff bound himself to deliver to the defendant 200 bushels of clover-seed, at the borough of Indiana, or at the city of Pittsburgh, or 100 bushels at one place and 100 at the other, on or before the 1st of February 1839, for which the defendant covenanted to pay $15 per bushel at the time of delivery. The proof was .that after the plaintiff had delivered 65 bushels of the seed at a warehouse in Pittsburgh, the defendant agreed to accept the residue at Indiana, and the same was delivered there by the plaintiff within the time stipulated. On the 29th January 1839, the defendant paid $75, and on the 14th February 1839, $72.50 on account, and failing to make further payment, the plaintiff removed the seed on the 14th February 1839, and sold it to another person for about $11.50 a bushel, and brought this action to recover damages. Dallas, President, thus stated the questions raised by the defendant, and instructed the jury upon them. 1. It is said that there has been such a modification of the written contract by the subsequent waiver of the defendant as to the delivery of the 100 bushels at Pittsburgh, as will not enable the plaintiff to maintain the present form of action founded upon the sealed contract. A tender or an offer to deliver an article under a contract is always for the benefit of the party to whom it is to be made, and may be waived or rendered unnecessary by him; and by the special count filed in the present case, this waiver as to the delivery is set forth. The answer to the objection raised by the defendant to the. present form of action is found in the case which he has cited, 2 Watts 57; “ There is a substantive difference,” says C. J. Gibson, “between an alteration of the plaintiff’s stipulations, being but conditions precedent to the action, and those of the defendant, on which it is directly founded. The performance of the first may be waived before the day, so as to entitle the plaintiff without more, to an action on the defendant’s covenants.” Upon this point, therefore, the court cannot charge as requested by the defendant. 2. It is contended “ that the removal of the clover-seed on the 14th February 1839, amounted to an abandonment of the contract on the part of the plaintiff, who on that account cannot recover.” The plaintiff, if the testimony of the witnesses is credited by the jury, appears through his agent to have done all that could have been reasonably expected or legally required. He kept the seed waiting the compliance by the defendant of his stipulation to pay, for two weeks; the article began to fall in price; the defendant alleges his inability to comply with his agreement, and the plaintiff, who was certainly not bound to wait indefinitely the leisure or the ability of the defendant, disposed of it elsewhere. His doing so, under the circumstances detailed by the witness, would not preclude his right to receive damages consequent upon the failure of the defendant to pay at the time stipulated. 3. It is certainly true that when covenants in an agreement are dependent or concurrent, the plaintiff must aver and prove performance, or an offer to perform the covenants on his part. This offer to deliver, upon the payment of the $15 per bushel, has, if the evidence be believed, been fully shown; and in that respect, therefore, the plaintiff has brought himself within the rule of law. 4. Under the pleadings in this case, the jury would be authorized (did they believe the testimony warranted them in so doing) to certify a balance in defendant’s favour. Such a finding, however, could only be had in the present case, by the adoption on the part of the jury of an entirely different view of it, from that entertained by the court; and this is said without intending to interfere at all with the province of the jury in-passing upon the credit of witnesses wholly unimpeached. 5. The receipt of money upon the contract by the agent of the plaintiff before the 1st of February, and subsequently, it is contended, precludes the recovery of damages in this case. The willingness of the plaintiff to take all he could get on the contract, furnishes no reason why he should not insist upon its full and perfect performance by the defendant; whilst it goes far to show a recognition on the part of the defendant, that, so far as the delivery of the seed was concerned, every thing had been done that he desired or could require. Because the plaintiff received $75 on account of the contract, after the day had passed for payment of the whole, it does not follow that he loses all remedy for damages for not paying the balance as stipulated. The plaintiff has exhibited his items of claim, giving certain credits on account of payments made by the defendant. This statement the jury will take with them. The measure of damages, should any be found, will be the difference between the contract price of seed, and the price it subsequently sold for, as proven by Hays, provided that sale was made bona fide, to the best advantage of all concerned; by this rule the jury are not bound, if they can find another more in accordance with the justice of the case.