Sickels v. Pattison , 14 Wend. 257 ( 1835 )

By the Court,

Nelson, J.

The testimony of Richards was sufficient proof of the contract between the plaintiffs and the defendant, as to the transportation of the lumber to market, to justify the court in submitting the fact to the jury. When the plaintiffs purchased the boats, they agreed to assume the contracts made by Richards, one of which was with the defendant; and they afterwards admitted that they had renewed them with the persons concerned.

The charge, however, of the court to the jury was erroneous. It assumed the principle, that if the contract was entire and not fulfilled by the plaintiffs, they were not only bound to refund the amount paid towards freight, but were also liable to damages for the non-fulfilment. The defendant having paid #30 towards the transportation of the lumber, a subsequent failure to perform the whole contract would not entitle him to recover it back; for if he undertook to recover back the amount paid, under the idea of a rescindment of the contract, he would be met by the equity growing out of the services actually rendered, and which should be taken into consideration in adjusting the rights of the parties. The true remedy in such a case is an action for damages for the violation of the agreement; or, as in this case, the defendant may, if he chooses, set up the breach and claim damages, for the purpose of diminishing or even extinguishing any amount which the plaintiffs seek to recover for the freight of the lumber.

It is true, if the contract was entire, a failure to perform would of itself be an answer to a recovery for the remainder of the freight money, as the plaintiffs could not maintain an action upon such a contract, after they had broken it. The compensation, in this case, I am inclined to think, did not depend upon the transportation of all the lumber. The stipulation was for a fixed sum for one thousand pieces, and no time of payment was mentioned. In contemplation of law it would probably be due on the delivery of the lumber at market. The delivery of the whole lumber at the market was not a condition precedent to the payment of the freight. It would become due, and be demandable as fast as delivered. If so, the plaintiff would be entitled to prosecute for the freight of the quantity delivered. If the jury were satisfied that by the contract the whole that was ready to be transported to market by the canal could have been carried, then the defendant would be entitled to damages; and it would be proper to prove them, with the view of reducing the amount claimed, or even extinguishing it, if the damages were large enough to cover it. 8 Wendell, 109.

As to the charge for the use of the landing, the testimony is not very clear upon the point. It would seem, from the testimony of Richards, that he was to charge nothing for the use of his landing for the lumber of the persons with whom he contracted; and if so, it necessarily follows, from the evidence, that the plaintiffs are not entitled to make any charge, as they took his place. This, however, is a question of fact for the jury to determine.

Judgment reversed, and venire de novo.