Erskine v. Erskine

| Superior Court of New Hampshire | Jul 15, 1843

Gilchrist, I.

The evidence does not show a breach of that clause in the condition of the bond by which the defendant agreed that he would furnish the plaintiff twelve cords of wood at the door, each and every winter. The defendant proved that in the latter part of the month of December, 1840, he drew twelve cords of wood for the plaintiff, and deposited it at the door. The plaintiff argues that here was a breach of the condition, because the defendant did not give him notice of the delivery of the wood; and he says also, that, for aught which appears, the wood might have been taken away the next day. It is true, he might have taken it away, and he might have committed any other trespass upon the plaintiff’s property or upon his person; but if a party have fulfilled a contract for the delivery of property, the contingency that he may at some future time commit some imaginable wrong, will hardly render invalid what he has properly done. We cannot conceive on what ground it was necessary to notify the plaintiff. Cases may be supposed, perhaps, where, although property might have been delivered in pursuance of a contract, its spirit could not be complied with unless the party had been notified of the delivery. Perhaps perishable property, such as would be injured by exposure to the weather, or by being suffered to remain where it was left, without being taken care of, could not be delivered so as to satisfy the spirit of a contract, unless a notice should accompany the delivery. But unless a notice should be rendered necessary by some peculiar circumstances, we are not aware that it should be given; nor do we know that there is any such general principle as the plaintiff has stated, which, in a case like the present, would require it. The defendant agreed to deliver the wood at the plaintiff’s door. He did so deliver it. It does not appear that a notice could have answered any useful purpose, and we think that upon this point there has been no breach of the condition.

The next question is, whether the condition were- broken for the payment of the money.

It appears that the requisite sum was ready at the house of the defendant, at the appointed time, on the 14th day of May,, 1841.

The plaintiff offered evidence that late in the month' of May he demanded the money of the defendant. On the 17th day of May the defendant was summoned as the trustee of the plaintiff, and as the creditors of the plaintiff might lawfully attach the money in the hands of the defendant, the latter would not be bound to pay it to the plaintiff during the pendency of the trustee process. Was the demand made before the service of the trustee process, or after ? This depends upon the construction to be given to the words, * ‘late in May.” We think they mean a later day than the 17th. We should not call the 13th day — two days previous to the middle of the month — early in the month; and we cannot say that the 17th day — two days subsequent to the middle — is late in the month. The 17th day is about the middle of the month; and we must construe the demand to have been made subsequent to the 17th day. It is also to be remarked, that against the plaintiff’s evidence tending to prove that a demand was then made, is to be weighed the testimony of a witness for the defendant, who was present, and heard no demand made by the defendant upon the plaintiff. The subsequent demand in writing, left at the defendant’s house in his absence on the 3d or 4th of June, is invalid. The defendant was not bound to remain at home, to receive the plaintiff, and the written demand could be of no avail; unless, perhaps, it should appear that he knew of the plaintiff’s intention, and went away to avoid a demand upon him in person, which he does not appear in this case to have done. We think that in this particular the condition has been complied with.

The condition also binds the defendant to “ furnish keeping for two cows and one horse for the plaintiff, both winter and summer ; that is, during the year.”

The contract contemplated a separate household establishment for the plaintiff. In the condition, various articles are enumerated which the defendant agrees to furnish to the plaintiff, and the word “ furnish,” in this connection evidently means “ to provide for.” He also agrees to permit the plaintiff to have certain privileges in the house and garden. The plaintiff resided in the house with the defendant, the privileges were there to be enjoyed, and the defendant’s contract was to be performed on the premises occupied by the parties, so far as from its nature could be done.

The place being, thus certain where the contract was to be performed, the question arises as to the manner of its performance, and the effect of the evidence.

The defendant was to permit the plaintiff to occupy “ the square room,” and to occupy the garden. Of course, he was bound to have the room and garden in such a situation that they could be occupied and enjoyed by the plaintiff. He was also to furnish apples for the plaintiff. But he was to do something more than permit the plaintiff to go into his orchard and gather them, if there happened to be any apples upon the trees, as he was to do more than permit the plaintiff to go into his mowing land and cut the grass, if there were any. Whatever article he was to furnish the plaintiff, he was to provide him with; to procure it, and place it where the plaintiff could reasonably and conveniently enjoy it. It would not have been a compliance with his contract, that he had, somewhere upon his' premises, grass which might have been made into hay, or apples which might have been gathered; for the keeping for the stock was not to be furnished in the mowing field, nor were the apples to be used in the orchard. The contract required that the grass should be cut and the apples gathered.

It is not denied that there was hay enough in the barn for the plaintiff’s stock ; and the case now turns upon the question, whether it be the duty of the defendant to fodder the stock — to take charge of them in the barn, and feed them. If such be his duty, it will result from the construction of the word “furnish.”

If A, living at Newport, agree to furnish keeping for B’s cattle, B living at Claremont, perhaps it might properly be held that he should furnish it at Newport, and that he should fodder the cattle sent him by B, as the latter could not at Claremont perform that duty. And, generally, if one agree to furnish keeping for cattle at another place than the owner’s residence, the contracting party should fodder them; for this would be but a reasonable construction of the contract, and what the parties probably would intend. But where the parties live together, and the evident intention is, that one is only to provide a separate household establishment for the other, in such a manner that he can reasonably enjoy it, the construction of such a contract as this must vary with the situation of the parties.

If the defendant should do more than provide sufficient hay for the cattle, in the bam, in the winter, if he should fodder them, what will be his duty in the summer ? Should he see that they are driven to the pasture in the morning, and brought home in the evening? If the word “furnish” mean any thing more than to provide a sufficient pasture for them, such must be his duty. But we cannot give the word so large a meaning.

There is a clause in the condition, which binds the defendant to keep such cattle as the plaintiff then owned, until the first day of November. This is a different matter. A contract to keep cattle, is á contract to take charge of them generally; not only to provide keeping for them, but to do every thing necessary for their maintenance — to fodder them ; and such is the general construction of such a contract.

The opinion of the court is, that there is no evidence of a breach of the condition in this particularthat the defendant did all his duty, by providing a sufficient quantity of hay with which the plaintiff might fodder his cattle, should he see fit so to do, and that there must be

Judgment for the defendant.