Watkins v. Hodges , 6 H. & J. 38 ( 1823 )

The.opinion of the court was.delivered by.

Martin, J.

This is an action on the case, instituted by the plaintiff to recover the price or, value of twenty-one hogsheads of tobacco, fold and. delivered to. the defendants, The declaration contains.four counts. 1st, A general inde-_ hitatus assumpsit 2,d. A quantum. merúif. 3d. An insi~u mul computassent And 4th. On a special agreement. The. plaintiff offered evidence to prove the delivery of, twenty-one hogsheads of tobacco to the defendants, some time in. March 1813. The defendants.then read to the jury a special agreement, admitted, to be in the. hand writing of the. plaintiff, in the following words: C.‘T have this day sold to. Messrs. Hodges and Lansdale. 60 bhds. of tobacco, of n\y. make, and now on hand, 45-thousand, weight of it crop, and, 15 thousand, weight second, at S3 pr. hundred.forthe crop, and g2:j- pr. hundred for the second, and.SI for each cask, to be paid for on the 25th day of. December next; the tobacco to be delivered and inspected at Beard’s Point warehouse, between this and the 10th of May next. 3d. Febry,, 1813. Nicholas Watkins of. Utos.”,

It is an established rule of law, that where there is a subsisting special agreement, a party to it shall not recover, on general counts. Tie must deólaré on the ¿pedal agreement, and that being the gist of the action, it must be stated in the declaration. Weston vs. Downes, Doug. 23. Hulle vs. Heightman, 2 East, 145. 1 Esp. Dig. 263, (139.) If then this contract was in force between the parties, the' plaintiff could pot. recover in this action. He could not recover on the three first counts, which are general, nor on the fourth. For altho’ it is founded on the special agreement, it has oniitted some of its, essential parts. The agreement is, that'foe tobacco sold and to be delivered, “should he the make of the plaintiff, arú on hand at the time the. contract was made.”. This is an important stipulation on the part of the plaintiff, and not mentioned in foe declaration. Rut if the declaration had strictly, pursued the agreement, the plaintiff was not entitled to' recover from the evidence. The agreement formed an entire contract, and. to enable foe plaintiff to recover on it he must prove a performance, or tender to perform every thing required by. it on his part to be performed, Cutter vs. Powell 6 Term. Rep. 320. The agreement is, that lie shall deliver sixty hogsheads of tobacco to the defendants by the 10th of May 1813; the evidence is, that he delivered 4wenty-one hogs-: heads in March, and no attempt is made to show a delivery or tender of the balance.

If the original contract was, rescinded by the parties, after a part performance of it by the plaintiff’, either by waiving the performance of the residue of the contract, or entering into a new one, so inconsistent with the first, that they could not stand together, the plaintiff might recover for the part performance on a general count. To bring himself within this principle of law, he offered three letters from the defendants in evidence to the jury, the last of which only, dated the 9th of April 1813-, is connected with •this part of the case. In that letter he states, “the alarming news received to day makes it necessary for me to countermand the orders I gave. capí. Rílen respecting your tobacco. Y ou will, on the, receipt of this, stop carrying down another hogshead of your tobacco, and if the capt has ally on board, you will particularly oblige me by telling him to have it put safely back in the shed of the warehouse, and wait to receive from us further orders,” Hero then a proposition, on the part of the defendants, that the plaintiff should not deliver the tobacco by the time., stipulated in their contract, but that he should keep it until they demanded a delivery of it. Whether the plaintiff assented to this proposition., was a fact, under a different course of-proceedings, that ought to have been submitted to the jury, and evidence was offered to prove that he did assent to it. ilut it is perfectly immaterial in this case, for it has been ire, quently determined, that a subsequent parole agreement to. postpone the delivery of articles under a written contract without seal, is not a waiver of the contract, but only an enlargement of the.time, for the-performance of it. la Warren vs. Stagg, referred to in 3 Term. Rep. 591, Buller, J. held, that an agreement to extend the time for the, performance of a contract, was not a waiver, but a continuance of the original contract. In Keating vs. Price, 1 Johns. Ca. 22, the same doctrine was maintained by the. court. That was an action founded on a special agreement in writing, by which the defendant promised to deliver to the plaintiff' a quantity of staves, on or before the 1st of May 17'9G. Parole evidence was offered to prove the acknowledgment of the plaintiff, that he had. made the contract as before stated, but that he had agreed to extend the, time for delivering them, until the next spring. A verdict •was taken fop the plaintiff, subject to the opinion of the court on several points, and among others, whether the timo, of performing the contract could be extended by a subsequent agreement between the parties. The court said this being originally a simple contract, it was competent for the parties to enlarge the time of performing it. An extension of the time may often be essential to the performance of executory contracts, and there can be no reason why a subsequent agreement for that purpose should not be valid: and directed a nonsuit to be entered. So also in the case of Cuff & others vs. Penn, 1 Maule & Selw. 21, an action was founded on a special agreement in writing, by which the;, plaintiffs stipulated to deliver to the defendant a quantity of bacon at certain times particularly mentioned in the agreement. After a part of the bacon had been delivered under this contract, a parole agreement was made between the parties, that the time for the delivery of the residue sh®u,Id be extended. The plaintiffs, after the. time had-elapsed at which they were to deliver the bacon under the contract in writing, tendered the residue to the defendant, who refused, to receive it, alleging the first contract was at end. But Lord Elknborough determined that the subsequent parole agreement did not substitute a new contract, in'the place of the first, but was a dispensation only with the performance of the original contract, in respect of the delivery of the bacon at the stipulated times, and this was confirmed by the court, on a motion to enter up a nonsuit The plaintiff, in the case now before us, if he did not consent to the enlargement of the time stipulated in the written contract, ought to have delivered the tobacco, or tendered a delivery, on or before the 10th of May 1813. If he did assent to extend the time lie ought then to have delivered it, or made a tender, at some subsequent period, and his declaiation ought to have contained a count setting out the contract, and a performance^ or tender to perform, on his yurt.

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