Middlesex Co. v. Osgood , 70 Mass. 447 ( 1855 )

Bigelow, J.

The defence, that the contract declared on was invalid under the statute of frauds, was not open to the defendants under their answer. By St. 1852, c. 312, §§ 12, 14, 18, if a party relies on any legal bar to the plaintiff's claim, such as the statute of frauds or the statute of limitations, he must set it up in clear and precise terms in his answer. Such is the plain requirement of the statute.

The only other ground of defence is, that the evidence at the trial was insufficient to warrant a verdict for the plaintiffs. But it seems to us that the legal effect of the evidence, taken in connection with the terms of the contract and its subject matter, was sufficient to sustain the plaintiff’s claim. As between the parties, the property in the waste made at the plaintiffs’ mill passed to the defendants, as soon as the same was gathered and placed by itself, ready for delivery. By the terms of the con tract, the defendants were to have all the waste made. No weighing or measuring was necessary, therefore, to ascertain the quantity; and the price was a fixed sum, payable quarterly, not depending on the amount of the article sold. There was no evidence of a refusal to deliver the waste by the plaintiffs, nor of any demand upon them by the defendants. All that the plaintiffs were bound to do was to be in readiness to deliver the waste when called for by the defendants. No place of delivery. was specified in the contract. The mill of the plaintiffs, where the waste was made and sold, was therefore the place where the parties to the contract were bound to make and receive the delivery. 2 Kent Com. (6th ed.) 505. Lobdell v. Hopkins, 5 Cow 516. Goodwin v. Holbrook, 4 Wend. 380. Proof, therefore, that waste was made at the mill, and that it was placed in a barn after being collected together, and that there was no refusal to permit.the defendants to take it away, was amply sufficient to show a performance of the contract by the plaintiffs, and was equivalent to an offer by them to deliver the waste to the defendants. The ruling of the court was equivalent to a nonsuit. We think the plaintiffs offered evidence sufficient to entitle them fcc a verdict, and that therefore the ruling was erroneous.

Exceptions sustained.