Speer v. . Cowles ( 1875 )

RoraiAN, J.

No exception appears to have been taken in the Superior Court, to the charge of the Judge upon the meaning and effect of the contract declared on, Consequently, mme can be properly taken here. The exception to the Judge’s refusal to charge as requested by the defendant on the illegality of the contract, was, (properly we think) not pressed here. It is only by an indulgence, that we can consider the errors which the defendant assigns to the instructions of the Judge as to the effect and meaning of the contract, so far as appeal’s from the record, for the first time in this Court.

We find no error in these instructions. We agree with the counsel fortlie defendant, that the obligation of the defendant to deliver the hides was conditional, and was to be void if lie vas unable to do so, either by the failure of the persons in Charleston with whom he had contracted, to perform their contracts, or by his inability to procure transportation from Charleston to the placo of delivery. But we concur with the Judge below in thinking, tliat it was incumbent on the defendant to satisfy the jury, that he bad made a reasonable effort to procure performance on the part of the persons in Charleston with whom he had contracted, and to procure transportation. Whether he had made effort or not, was a question of fact for the jury, and the jury found it against the defendant. It may bo that tho defendant did all that he was required to do. -Rut we cannot reviso the verdict.

We do not agree with the learned counsel for the defendant, that this was a sale of goods “to arrive.” In cases of the class of those he cited to us, the goods are supposed to have been previously shipped by a particular vessel, and their arrival at the place of deliver}' may fail, either by reason that they were not shipped as supposed, or that they were lost on the voyage. In such eases, no duty in respect to their arrival can be imposed on the vendor who can do nothing to secure it, and the arrival is strictly a condition precedent. In the present case the defendant agrees to deliver the goods, with a proviso that the agreement shall be void in either of two events. The condition is a subsequent one, and it was incumbent on the defendant to show that one of the events which was to avoid the agreement, had occurred. If he had introduced evidence that he had contracted with persons in Charleston for hides, and that upon demand they had failed without fault on his part, to deliver them, that would have been a defence. It does not appear that the Judge was requested to charge to that effect. The charge which the Judge gave was in itself unexceptionable, and if he omitted to give any instructions which he might properly have given, it does not appear that he was requested to give them. It is well established that the omission of the Judge under such circumstances, is not error.

Pee Cubiam. J udgment affirmed.