Barry v. Palmer

| Me. | Jun 15, 1841

The opinion of the Court was delivered by

Weston C. J.

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The principal question, in controversy between the parties, is, at whose risk were the paper hangings, shipped by the plaintiff on board the steamer New-England, in May, 1838. This will depend upon the contract, as originally made, or as subsequently modified. The written agreement is in two parts, by which the plaintiff and defendant, respectively, became possessed of the written evidence of what the other party had assumed. From both, taken together, it appears, that the plaintiff was to deliver paper hangings, conforming to a memorandum annexed, on board a Gardiner steamboat at Boston on her first trip, in April, 1838, for which the defendant was to pay in paper of a certain quality and price, to be shipped at Gardiner for Boston, on the receipt of the paper hangings. When the plaintiff shipped the paper hangings at Boston, and the defendant the unstained "paper at Gardiner, according to the contract, each would have done, what he stipulated to perform ; and the paper stained and unstained would thereupon be at the risk of the party, for whose use it was thus shipped. The subsequent parol agreement, properly understood, must be regarded as having reference to other patterns, than those to be found in the memorandum, which was made a part of the contract. Such as there appear had been selected by the defendant, and he had contracted to receive and pay for them. By the parol agreement, such as he had not seep, if forwarded, he was to receive or to return, at his election.

The defendant was to pay, on the receipt of the paper hangings at Gardiner. This did not impose upon the plaintiff the risk of their transit from Boston. It only determined the time, when the defendant was to make payment. The plaintiff failed to perform on his part, in two particulars. He did not send the paper at one time, as he had agreed; nor did he send it in April, .on the steamer’s first trip, according to the contract. But his rights will remain unaffected, if performance in these respects was waived or excused by the defendant. And this, in our judgment, is fairly deducible from the evidence. The plaintiff having failed to send on the steamer’s first trip, the defendant, in his letter to the plaintiff, of April 17th, 1838, desires to be informed, when he will send the paper hangings, adding, “ the paper you are to have is ready.” This clearly waives strict performance, and manifests a willingness to receive the hangings subsequently, that is, as must be understood, if shipped within a reasonable time. That the shipment in question would have been satisfactory in point of time, is apparent from the fact, that the defendant actually received and paid for hangings, shipped the following month. And the correspondence and acts of the parties are evidence, that the defendant waived his right to require, that the entire quantity, he had agreed to purchase, should be shipped at one time, and that on the first trip of the steamer, in the month of April. It results, that such parts of the hangings lost, as conformed to the memorandum, which is part of the contract, were at the risk of the defendant.

The defendant should have paid, by shipping his unstained paper, in a reasonable lime, after the hangings would have been received, if the steamer had arrived in safety. This he has not done, and has refused payment generally upon demand, prior to the suit. It is objected, that whatever may be the merits of the plaintiff’ ’s claim, he should have declared specially. There may be weight in this position. But the whole cause has been tried, with reference to the contract and the subsequent facts. The account annexed disclosed in detail the subject matter of the suit. A special count for the same cause, might have been added, under leave to amend. The grounds taken in defence, upon the merits have been fully considered. It is not too late to allow the amendment; and the justice of the case requires it. The plaintiff accordingly has leave to file a special count, upon the contract. This being done, the non-suit is to be set aside, and a default entered.