Scull v. Higgins ( 1829 )

OPINION OF THE COURT.

This was' an action on the case, brought by Scull for the breach of a parol contract to deliver a. keel boat. The declaration charged, that on the 19th day of September, 1828, the defendant, in consideration, etc., promised to deliver the said boat 40 days from the date, and assigns for breach, that the defendant, on the 20th day of September, sold the said boat to Ra-felle and Nntrebe. The suit was brought on the 20th of September, 1828, the day after the . contract is charged to have been made. A trial was had, and the jury found for Scull, and a motion to arrest the judgment was sus- i tabled, from which the plaintiff took an ap- I peal. The errors assigned for arresting the ¡ judgment, were: (1) There was no cause of ¡ action: (2) the action was premature; (3) there is no sufficient breach. The second objection was mostly relied on in the argument, namely, that the action was premature. The contract was laid to be>on the 19th of September, 1828. to take effect 40 days thereafter, and were this an action on a specialty, the objection would be. valid; but in this form of action the time is not material, and the plaintiff might, and we are bound to presume did, prove the contract to nave been made at a prior date to the day laid, and that the time given to deliver the boat had expired. 1 Chit. 2SS. This is equally applicable to the third objection, since we will presume that a sufficient breach had been proven on the trial. As to the first objection, that there was no cause of action, wo think there was a cause of action, and the damages which the plaintiff sustained by reason of a breach, a proper subject of inquiry by the jury. Reversed.