Dwinel v. Howard , 30 Me. 258 ( 1849 )

Sheplf.y, C. J.

— The case is presented by an alternative report of referees, stating the facts proved before them.

The action appears to have been assumpsit, commenced by the plaintiffs to recover damages for a refusal by the defendants to perform a written contract made between the parties on March 31, 1842, for the sale and purchase of a quantity of ice. The defendants agreed to sell to the plaintiffs all the ice at certain places named, at the price of four dollars per cord. Five hundred dollars were to be paid on the execution of the contract, to be applied in payment “ for the last ice received.”

The balance was to be paid “ one-half in thirty and one-half in sixty days, and if any of the ice is taken away sooner, then payment is to be made as fast as taken.”

Five hundred dollars were paid and accepted as the payment on the execution of the contract. Six hundred dollars were paid on April 30, 1842, and one hundred and twenty-five dollars were paid on May 27 or 28, 1842. The quantity of ice, was determined to be three hundred and fifty cords, by an admeasurement made by a person selected by the parties. The plaintiffs had received two hundred and forty-seven and one-half cords of it.

They did not fulfil the contract on their part by paying for the whole of the ice in sixty days. Nor had they paid according to the contract as fast as they had taken the ice away. Under these circumstances the defendants refused to deliver the residue of the ice without payment for it.

When payment is by agreement to be made for goods sold, at the time of delivery, they do not become the property of the purchaser unless payment be made or tendered, or there be a waiver of the right to exact it. Houdlette v. Tallman, 14 Maine, 400; Levin v. Smith, 1 Denio, 243.

If the defendants may be considered to have waived their right to claim payment on delivery, so far as it respects the quantity delivered, still the plaintiffs, to be entitled to exact performance by a delivery of the residue, should have paid for the whole quantity of ice within the sixty days. This they failed to do. Having failed on their own part to perform, they cannot recover damages of the defendants for refusing to deliver the residue of the ice. Nor can they recover back the money paid in part execution of the contract. Appleton v. Chase, 19 Maine, 74.

The report of the referees in favor of the defendants, is accepted.

Note. —Wells, J. was not present at the argument, and took no part in this decision.