Nourse v. Snow , 6 Me. 208 ( 1829 )

Mellen C. J.

delivered the opinion of the Court.

Comparing the contract as set forth in the writ, with the testimony of the plaintiff’s witness, which the jury have found to prove a contract on the part of the defendant for the transportation of the hay in question, we do not perceive any variance either as to the places of destination, or the stipulated amount of freight. Nor do we think that a tender of the residue of the hay alongside the vessel, was necessary to enable the plaintiff to maintain this action. It would have been a useless trouble and expense, after the defendant had expressly directed that no more should be brought, because the vessel was full. By this language and conduct on his part, he excused the plaintiff from the formality of a tender. Cases are numerous to this point. As to the question of damages, the instruction of the Judge was perfectly correct. The plaintiff was entitled to be placed in the same situation, in a pecuniary point of view, as he would have been in, if the defendant had honestly performed his engagement.

Judgment on the verdict„