Wilder v. St. Johnsbury & Lake Champlain Rd. ( 1891 )

MUNSON, J.

For four years prior to 1884 the plaintiff’s firm was engaged in selling coal at St. Johnsbury. Its supply was obtained in the state of New York, brought by boat to Maquam Bay, and transported thence over the defendant’s road..

In April, 1884, the plaintiff had a dispute with Jewett, the defendant’s superintendent, about the defendant’s liability for the cost of an elevator which the firm had erected on defendant’s land. In the course of this dispute Jewett declared that the company would not haul any more coal for the plaintiff’s firm. Upon a renewal of the controversy some days later, Jewett repeated this statement, and said further that the firm had got to go out of the coal business. The plaintiff then asked Jewett what he would do if they should bring a boatload of coal to the wharf at Maquam. Jewett replied that he should not take it nor transport it; that he should send the boat back into the lake; that they need not buy nor bring any more coal to be shipped, for the company would not carry it.

Shortly after this the defendant entered into a contract with a firm which had not before been engaged in the sale of coal, by which it agreed to haul coal for this firm at the rebate before allowed the plaintiff’s firm, and stipulated not to give a rebate to any one else except the Fairbanks company. That company was also a party to the agreement, and bound itself not to sell coal for a specified time except to its own employes. The plaintiff learned of this agreement early in June of the same year, and soon after it was made.

The controversy regarding the elevator, and other matters in dispute between the parties, were adjusted a few weeks after the conversation above recited. It does not appear that at the time of this adjustment any reference was made to what had been said in regard to further transportation. Neither party afterwards approached the other upon the subject. The firm treated Jewett’s statement as final, and made no purchases for shipment by defendant’s line. If it could have received its supply by that line, and been given the rebate allowed its competitor, it would have continued its business, and probably have sold as much that season as before. Finding that a competing business could not be carried on by bringing coal over the next cheapest route, it ordered but a small quantity, and disposed of this without profit. Before another season the firm was dissolved by the death of the senior partner.

The plaintiff contends that these facts show such a denial of his'right to the facilities of transportation as gives him a cause of action against the defendant and entitles him to recover the damages sustained in the loss of his business. It is insisted that Jewett’s statement was a waiver of whatever tender for transportation might otherwise have been necessary, and that no further action on the plaintiff’s part was required to fix the defendant’s liability. The defendant does not now question but that upon a tender of coal by the plaintiff it would have been its duty to carry it; but it claims that it cannot be held to respond in damages for a refusal to transport except where there is an actual tender of the property.

Assuming that an actual tender can be dispensed with, and that the statement of Jewett was in terms sufficient for the purpose, it is still necessary to consider whether the circumstances in which it was made were such as to permit of its being given that effect. It is evident that the case we have is not the case that would have been presented if the conversation relied upon had related to some specific property then upon the line of the defendant’s road awaiting shipment or in transit over a connecting road, or even to some distinct proposal dependent upon the defendant’s service. It is not necessary to consider what the plaintiff’s rights would have been in either of the cases stated. The statement here was not made with reference to any specific property, nor even with reference to a definite proposal. At the time it was made the plaintiff’s firm did not have any coal at Maquam for shipment; and it does not appear that the firm had ordered any coal sent to that point, nor that it was then the owner of any coal. It is evident that Jewett’s statement, made under these circumstances, can be given effect only as a general refusal to do business for the plaintiff in the future, and that if the plaintiff recovers it must be upon the ground that a refusal of that character is sufficient to subject a carrier to liability.

We think a refusal of further service, which is not referable to any particular property or definite requirement, cannot be given the effect of a waiver. The doctrines of tender and waiver of tender have application only to matters definite and certain. In cases where the rights of contracting parties depend upon a waiver of the tender of specific articles, the subject matter of the waiver is ascertained by the contract. The common law permits a tender of money only in cases where the sum is certain, or capable of being made certain by mere computation. The matter involved here, beyond the fact that the plaintiff was engaged in the coal business, was in all its bearings prospective and indefinite. If we hold that the facts stated are sufficient to charge the defendant the same as if the property had been on hand for transportation, we give the plaintiff the benefit of a waiver of the tender of property, the amount of which was in no way ascertained, and which could not but be a matter of uncertainty to the plaintiff himself. We think a refusal of this character can be given the effect of a waiver only when the property which would have been tendered but for the refusal is in some manner definitely ascertained. The circumstances existing at the time of Jewett’s statement did not justify the plaintiff in treating it as a waiver. It is not necessary to determine the exact conditions that would have entitled him to do so.

Judgment affirmed.

Taft, J., dissents.