7 Colo. App. 350 | Colo. Ct. App. | 1896
delivered the opinion of the court.
The present case is entirely analogous in all of its leading features to those which have been cited. Assuming it was within the contemplation of the parties that the ties should be prepared from standing timber, or from logs which had been cut, the work to be done was in no sense the personal labor of the contracting party, and so far as it may be controlled by the terms of the contract, the agreement could as well have been fulfilled by the purchase and delivery of the ties specified as by their preparation from logs, or the reduc
The circumstance that the number 40,000 is mentioned concurrently with the specification of red spruce ties does not operate to aid the contract and render it valid. The contract is to be taken as an entirety and indivisible, and whatever it contains must be taken to be parts of one and the same thing, and we must from all its terms be able to conclude what the parties had agreed respecting each mentioned item. Scott v. The Eastern Counties Ry. Co., 12 M. & W. 31; Baker v. Higgins, 21 N. Y. 397; Clark v. Baker, 5 Metc. 452.
While we regard the memorandum a's wanting in some of the essential elements of a valid contract, we do not place our conclusion as to its insufficiency on the neglect to state the time at which the material was to be delivered. The contract is so entirely defective that we do not care to enter into the discussion of this very troublesome question. Many well considered cases hold the law will supply any omission to state the time within which goods are to be delivered, and hold a contract performable within what the law would adjudge to be a reasonable time after the goods are called for. The same rule might apply if goods were to be delivered at a particular place, and the offer of delivery was within what the law would term a reasonable time subsequent to the execution of the agreement. Salmon Falls Mfg. Co. v. Goddard 14 How. 446.
It is quite possible this principle might not be applicable-to the present case, and that it is within the rule which re
All agree the terms of the bargain must be so stated as to render it possible therefrom to gather what the parties have agreed to. Tested by this very general rule, which is sufficient for our purpose, a simple inspection of the memorandum will demonstrate its insufficiency. We are unadvised by its terms what number of ties of the various descriptions were agreed to be delivered by the contracting party. If the 40,00'0 is referable only to the red spruce ties, then the agreement is absolutely silent as to what the parties contracted respecting the dry and green white spruce, and the culls or the sets or the lumber. If the number is to be taken as applicable to all the different varieties, we cannot ascertain what part of each the parties contracted for. There is the same difficulty with respect to the number of switch sets which were to be furnished, the number of culls which were to be delivered, and the amount of lumber which Dell was to supply. There was no agreement to supply a certain definite thing, or a certain number of articles of a particular description of the various sorts specified, nor did the Railroad Company agree to accept specific articles of a given number or quantity. If the company had brought suit against Dell for the specific performance of the contract, it would have found insuperable difficulty to furnish a basis on which the court could decree a .performance. Under these circumstances, the other party must be subject to a like difficulty when he brings an action to recover damages for a failure to perform. The necessity to express .the subject-matter of the contract in the memorandum, or some other writing to which reference is made, is pretty generally acknowledged. 1 Reed on Stat. of Frauds, secs. 418, 216; Bailey & Bogert v. Ogden, 3 Johns. 398 ; Breaid v. Munger et al., 88 N. C. 297; Cummer v. Butts, 40 Mich. 322; Ross v. Purse, 17 Colo. 24; Eppich v. Clifford, 6 Colo. 493.
The district court committed no error in the trial of the case, and its judgment will therefore be affirmed.
Affirmed.