Blackburn v. Reilly

The opinion of the court was delivered by Dixon, J.

The first question for decision on this writ of error is whether the pleas puis darrein eontinuanee were good.

They were pleaded in bar of the action, and a prime requisite of such pleas is that they shall allege facts which form a conclusive answer to the action and entitle the defendant to a final judgment in the cause. 1 Ch. on Pl. 525. The express terms of the contract, relied on in these pleas, show that nothing growing out of and dependent upon that agreement could have this broad effect in favor of the defendant. According to its provisions, the defendant was forthwith to pay the costs of this suit • in case he failed to comply with its stipulations, the suit was to proceed as if the contract had not been made; and if he fully performed it, the plaintiff was to discontinue the suit without costs. So that the effect upon the pending litigation, which could result from circumstances the most favorable to the defendant, was that the plaintiff could be compelled to discontinue it without costs. That is quite dif *308 ferent from the judgment for defendant to be rendered upon a good plea in bar, which would award costs to the defendant and be conclusive in his favor upon all subsequent litigation involving the same issues. It is evident that the effect which the parties intended to produce on the pending suit, by force of this agreement, could be properly secured only by motion, not by plea. The demurrer to these pleas was good.

The other question discussed on the argument was, whether the defendant had the right to refuse to receive any more bark in case he could satisfy the jury that the five loads of bark delivered were not equal in quality to the requirements of the contract.

The contract provided that the plaintiff should deliver and the defendant should receive one car-load of bark weekly for a year at $18 a ton, payable on delivery. It belongs to a class of agreements sometimes called continuing contracts of sale, because they are to be completely performed, not by single acts of delivery and payment, but by a series of such acts at stated intervals.

The rule to be applied in determining whether the express obligations of such contracts remain, after one or more breaches, by either party, has been the subject of much discussion of late years, and has given rise to some contrariety of judicial opinion. We do not feel constrained by the phases of the present case to enter at any length upon the details of this discussion. In our opinion, the rule established in England by the judgment of the House of Lords in Mersey Steel and Iron Company v. Naylor, 9 App. Cas. 434, affirming the judgment of the Court of Appeals in S. C., 9 Q. B. D. 648, is one which in ordinary contracts of this nature will work out results most conformable to reason and justice. The rule is, that defaults by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract or a design no longer to be bound by its terms. This rule leaves the party *309 eomplaining of a breach to recover damages for his injury on the normal principle of compensation, without allowing him the abnormal advantage that might enure to him from an option to rescind the bargain. It also accords with the ancient doctrine laid down by Serjeant Williams in his notes to Pordage v. Cole, 1 Sound. 320, b, that where a covenant (of the plaintiff) goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the contract on the part of the defendant without averring performance in the declaration. It, of course, is inapplicable where the parties have expressed their intention to make performance of a stipulation touching a part of the bargain, a condition precedent to the continuing obligation of the contract; and peculiar cases might arise where the courts would infer such an intention from the nature and circumstances of the bargain itself, cases in which the courts would see that the partial stipulation was so important, so went to the root of the matter (to use a phrase of Blackburn, J., in Poussard v. Spiers, 1 Q. B. D. 410,) as to make its performance a condition of the obligation to proceed in the contract.

The case in hand is one of ordinary character, and, therefore, the question under the rule is, whether the circumstances would warrant an inference by the jury that the plaintiff purposed to abandon the contract, or no longer to be bound by its terms. This question is, we think, not doubtful. The plaintiff had delivered five car-loads, which had been accepted and paid for by the defendant, without any intimation that they w’ere not satisfactory, was ready to deliver the sixth when the defendant requested delay, and was prevented from further deliveries only by the peremptory refusal of the defendant to receive any more. Against this refusal the plaintiff protested, then proposed an arbitration, and threatened suit if the defendant should persist, and, finally, brought this action for damages. In the face of all this there is not a shadow of reason for saying that the plaintiff had abandoned or repudi *310 ated the contract. If the five deliveries of defective bark had been made against notice and remonstrance, it might have-suggested the idea that the plaintiff meant to disregard his obligations, but by the defendant’s acceptance of and payment for the bark without objection, this ground for a possible inference of repudiation is wanting in the case. We regard it as incontestable that the deliveries were made in recognition of the binding force of the agreement. The defendant, therefore, was not discharged.

Cahen v. Platt, 69 N. Y. 348 , was precisely like the case-before us. The plaintiff had agreed to sell the defendant glass to be delivered in installments. He had made several deliveries which had been accepted and paid for by the defendant. Subsequently, the defendant complained of the quality and refused to receive any more. The suit was for damages resulting from the refusal, and the plaintiff recovered. Scott v. Kittanning Coal Co., 89 Penna. St. 231, was also> similar, but there the defendant contended that the conduct of the plaintiff in the delivery of the defective coal was fraudulent. Yet, the court held the defendant would not be thereby discharged.

There was no error in the ruling of the trial justice on this proffered defence.

The judgment below should be affirmed.

For affirmance — The Chancellor, Chief Justice, Depue, Eeed, Scudder. Van Syckel, Brown, Clement,. Cole, Paterson, Whitaker. 11.

For reversal — None.