Garfield & Proctor Coal Co. v. Fitchburg Railroad , 166 Mass. 119 ( 1896 )

Holmes, J.

The defendant concedes that there was an implied agreement that the defendant would discharge the plaintiff’s vessels, and that by implication of law this agreement was to be performed within a reasonable time. The court are of opinion that such an agreement or a duty is shown as matter of law by the facts set forth in the bill of exceptions, although I cannot free my mind from hesitation in view of the opinion of the presiding judge that the plaintiff was at liberty to take its vessels elsewhere. We are of opinion further, that, the contract being established, there is nothing in the rest of the argument for the defendant.

The argument most pressed is that it appears on the facts that the plaintiff had no case. But it is stated in terms that there was conflicting evidence as to whether the defendant was guilty of negligence in not beginning to discharge the plaintiff’s coal earlier than it did, and the court ruled that the question whether it was guilty of such negligence was immaterial. It would be a mere perversion of the bill of exceptions to say that, because the court found that there was no negligence in discharging the coal after the discharge had begun, therefore it found against the plaintiff as to the delay before the discharge had begun in the face of a direct refusal to entertain the question. It is equally inadmissible to assume that we have the evidence of the alleged earlier negligence in such form that we can pass upon its sufficiency as matter of law. It is certain that we cannot say that the time of the delay was reasonable, but we give no intimation, one way or the other, as to how the case strikes us on the question of negligence upon the facts disclosed.

The ruling seems to have been based on the finding from the facts set forth in the exceptions that the plaintiff was under no obligation to keep its vessels for discharge at the defendant’s wharf, but could have taken them elsewhere for discharge. In view of what has been said above, we do not construe this as meaning that there was no undertaking or duty on the part of the defendant, but we understand it to mean that the plaintiff, if dissatisfied with the delay, was free to go elsewhere. The finding thus narrowed does not exonerate the defendant. It does not appear that the plaintiff was not warranted in waiting a reasonable time for the defendant to begin to unload. If the defendant did not begin within a reasonable time, it broke its contract; and if after that the plaintiff ought to have gone elsewhere, that only would affect the amount of damages, not the liability. But a jury might find that the plaintiff was justified in thinking that the most expeditious or most prudent course, after waiting so long, was to wait longer. We do not go into the considerations upon the two sides of that question, but it is not quite the same as would arise upon a grocer’s failure to deliver a barrel of flour on time, where there would be no difficulty in hurrying him or in going to another shop.

It is suggested that the plaintiff waived its rights by allowing its vessels to be discharged at a later time. No doubt cases occur in which parties going on with a contract after the time stipulated for performance show by their acts that they have modified the contract and enlarged the time. But a contractor, by taking what he can get under his contract when he can get it, no more necessarily and as matter of law waives a claim for damages for failure to perform on time than he necessarily waives a defect of quality by accepting goods. Merrimack Manuf. Co. v. Quintard, 107 Mass. 127.

Exceptions sustained.