Cowper v. . Saunders , 15 N.C. 283 ( 1833 )

His Honor Judge Seawell instructed the jury, that to entitle the plaintiff to recover, he must either show that he was at the place agreed on for the delivery of the shingles, within the time agreed on, or that his failure was occasioned by some act of the defendant, and that if he failed to be at the place within the time, any notice he might receive afterwards, that the defendant did not intend to deliver the shingles would not enable him to maintain this action, though the letter containing such notice were written before the expiration of the time.

A verdict being returned for the defendant and a new trial moved for and refused, judgment was rendered thereon, from which the plaintiff appealed. The transcript of the record filed in this case is so exceedingly imperfect, and the case made so destitute of precision, that we find it difficult to understand the point intended to be brought before us. There is no declaration whatever so that we cannot see what is the contract alleged to have been made and broken. The case tells us no more of its nature than is to be collected from the statement that the action was brought to recover damages for an alleged breach of contract to deliver shingles — which by the contract were to be delivered at a place certain, and within five weeks from a prescribed day. Whether this contract to deliver was founded on the consideration of money actually paid, or of money to be paid at the time of the delivery, or of money to be paid afterwards, we are wholly without the means to ascertain. Whether the defendant made any attempt to deliver according to the last day, or at an earlier day, we are uninformed. Under these circumstances, the Judge's charge is brought before us for revision. We can perceive no (285) other course than to examine its correctness as applying to all cases of a contract like that stated to affirm the judgment if the charge be universally correct, and to reverse the judgment if the charge be in any such case erroneous. It is highly probable that this course may not do justice to the opinion of the Judge, nor decide the legal questions intended to be submitted, but we are obliged to act upon the case judicially brought before us and we can see no other rule by which to direct our action.

The opinion purports to lay it down as a rule of law, that when one man sues another upon his contract to deliver specific articles at a place named and within a period of time named, the plaintiff cannot recover unless he show that he was at the place agreed on within the time named, or was prevented from attending by some act of the defendant. Now where according to the contract there are concurrent acts to be done by the parties, as for instance, the one to deliver specific articles on receiving the price, and the other to pay the price on receiving specific articles, there we understand the rule of law clearly to be that neither can use the other for a non-performance without an allegation that he had performed or was ready to perform the act stipulated to be done on his part. But upon the case stated, there is but one act to be done, and that to be done on the part of the defendant. If this contract be obligatory, and the case so represents it, the defendant must either perform his engagement, or do what is tantamount to performance, or allege some sufficient reason for non-performance. The place for the delivery of the articles was fixed, and the time for the delivery so far certain as that it should not exceed a certain day. It was the duty of the defendant to deliver the articles at all events on the last day of this appointed period, and it was competent for him to make the delivery at an earlier day on giving reasonable notice of such a design to the plaintiff so that he might have an opportunity to attend. (286) If indeed on the last day, or at an earlier one of which the plaintiff had received reasonable notice, the plaintiff did not attend to receive the articles the defendant would have been justified at leaving them there at the plaintiff's risk. But without some attempt on the part of the defendant to execute his engagement, which is either equivalent to a performance or furnishes a legitimate excuse for non-performance unless there is more in the case than is disclosed to us, we cannot say that the plaintiff ought not to recover.

PER CURIAM. Judgment reversed, and a new trial granted.

Cited: Grandy v. McCleese, 47 N.C. 145.