Dawley v. Potter ( 1896 )

This suit is based upon the following offer:

"PROVIDENCE, July 12, 1892.

JOHN A. DAWLEY, ESQ.

Dear Sir: — I will agree to give you two hundred and fifty dollars ($250.00) for a foal of 1893, by Aristocrat, out of Empress, provided such colt is a filly, all right and sound at five months' old, well marked, with no white on front feet, should you wish to sell her.

Very truly, EARL H. POTTER."

A filly was born May 12, 1893, which became five months old October 12, 1893. The declaration and evidence showed that the consideration was a sale by the defendant to the plaintiff of the mare with foal for the sum of $450, coupled with this offer, and the first ground of exception is the admission of testimony to that effect. We see no valid objection to it. Its evident purpose was to show that the offer was not a mere voluntary offer, which could be revoked at any time, but that it was founded upon a consideration which kept it alive according to its terms.

The main question, therefore, comes upon the proper construction of the proposal. The court instructed the jury that the plaintiff had a reasonable time after the expiration of the five months within which to signify his intention to sell the colt to the defendant pursuant to his offer. We think that this instruction was correct. By the terms of the offer the plaintiff could not make the sale until it appeared that the condition could be satisfied at the end of five months, and he was then to determine whether he wished to sell or not. This is enough to show that the contract was not to be consummated upon the very day that the time for determining the conditions expired, and to take the case out of that class of cases where the time is fixed for the performance of the contract, e.g. Ives v. Armstrong, 5 R.I. 567, and where time is of the essence of the contract. Hicks v. Aylsworth,13 R.I. 562; Potts v. Whitehead, 20 N.J. Eq. 55; Maclay v.Harvey, 90 Ill. 525.

This contract is silent as to the time of performance, and fixes only the time for the determining conditions upon which a sale shall be based. We do not think that the contract shows an intention of the parties to complete the whole transaction on the last day of the five months. In such a case the sale and delivery may be completed within a reasonable time. 2 Chitty on Contracts 11th Am. ed. 1062, and note.

The petition contains other grounds based upon rulings at the trial; but as no exceptions to these rulings were taken at the time, they are regarded as waived and cannot be considered as grounds for a new trial. Sale v. Arnold, 7 R.I. 582; Meyers v. Briggs, 11 R.I. 180; Newton v. Weaver, 13 R.I. 616.

Petitions dismissed.