Fleming v. Gilbert, 3 Johns. 528

Fleming v. Gilbert

3 Johns. 528 | N.Y. Sup. Ct. | 1808

Thompson, J.

delivered the opinion of the court. The first question presented by this case is, whether the facts set forth in the notice, under the defendant’s plea, afford a yalid defence to the present suit. I am inclined to think that they do. The condition of the bond substantially is, that' the defendant should, by a certain day, procure and deliver to the plaintiff, a bond and mortgage which he had given to Isaiah Gilbert, and to discharge the same from the record. The defendant, within the time limited, did procure the bond and mortgage, and tendered, and offered them to the plaintiff; and did also offer to do whatever the plaintiff should require for the further discharge of the bond and mortgage, or the record thereof; but the plain*531tiff, not knowing at that time what was further necessary, did discharge the defendant from the strict and literal performance of the bond, and entered into- another engagement respecting the further proceedings. The plaintiff’s conduct can be viewed in no other light than as a waiver of a compliance with the condition of the bond, so far as it related to a discharge Of the mortgage on record ; and I see no infringement" of any rule or principle of law, in permitting parol evidence of such waiver. It is a sound principle, that he who prevents a thing being done, shall! not avail himself of the non-performance he has occasioned. Had nob the plaintiff dispensed with a further compliance with the condition of the bond, it is probable that the defendant would have taken measures to ascertain what steps were requisite to get the mortgage discharged of record, and would have literally complied with the condition of the bond. We find the rule above alluded to, recognised in ancient as well as in modern decisions. Thus, where the condition of a bond was to raise a mill, the obligor came to the obligee, and told him every thing was-ready to erect the mill, and asked him when he would have him come and put it up; the obligee answered, that he would not have it, and discharged him entirely of the erecting of the mill, and that was held sufficient to excuse him from the performance. (1 Roll. Abr. 453. pl. 5. Year Book, 2 Hen. VI. 37.)

So, also, in an action of covenant upon a charter-party, for demurrage, where it appeared that the ship-owner had waived all claim to demurrage, and consented that the time should be enlarged within which the cargo was to be discharged, Lord Kenyon said,, that if the matter had been properly pleaded, it would have been a good and legal defence against any claim for demurrage. (1 Esp. Cas. 35.)

Upon the same principle, it ia held that a tender and refusal, or waiver, (which must always rest in parol,) is equivalent to an actual performance; (1 Stra. 535. Doug. 661.) and in Keating v. Price, (1 Johns. Cas. 23.) this *532court allowed evidence of a parol agreement to enlarge ^t|le tjme 0f performance of a written contract.

' There was, accordingly, a misdirection at the trial, in overruling the testimony offered as a defence to the suit, but as the recovery is but nominal, and the only contest now is respecting the costs of the suit, it cannot be advisable that there should be a new trial, merely to give the defendant an opportunity to obtain, by a verdict, the costs already accrued, together with the costs of such new trial. It appears, therefore, to be proper that the motion for a new trial should be granted, with this proviso, that the plaintiff may elect, by the first day of the next term, to discontinue without costs.

The court has frequently decided, (ante, 241. and the cases there referred to,) that it would not, upon any strictly legal or technical objection, taken by the party moving, set aside a verdict or nonsuit, and grant a new trial, when there could be no other object in view than to obtain nominal damages. Two of the cases there referred to, were actions of trespass, but the same principle applies to this case ; and if the plaintiff will abandon the-verdict he has obtained, it cannot be fit or discreet to add the trouble and expense of a new trial, in order to give the defendant the benefit of a verdict for costs. The English courts exercise their discretion on the subject of new trials, under the same rules.

In Deerly v. Dutchess of Mazarine, (2 Salk. 646.) the court refused to grant a new trial, though the verdict was clearly against law, because they held it to be agreeable to the justice of the case.

In Macrow v. Hull, (1 Burr. 11.) the defendant obtained a verdict directly against evidence, and the strict point of law,' but the court would not interfere, because the trespass was trifling and frivolous, and the damages only nominal : And in another case," soon after, (1 Burr. 54.) Lord Mansfield held, that a new trial ought not to be granted to gratify litigious passions, upon every point of ■summum jus. These were cases , where the jury had disre*533garded the evidence, and the law arising on it, but the same reason and the same rule apply, where the misdirection of the judge had influenced the verdict. It is not the source from whence the mistake originates, but the equity of the verdict in the one case, and the trifling and vexatious object of the new trial in the other, that prevents the interference of the court.

In Edmundson v. Machell, (2 Term Rep. 4.) the court of K. B. decided that they would not grant a new trial on a technical objection, in point of law, to the direction of the judge, when they flaw justice had been done, though the misdirection in that instance, clearly swayed the jury. When a question on a misdirection arises, the first inquiry is, whether it was in a material point, and affected the merits of the case. The court always makes this inquiry, (3 East, 455. 8 East, 352.) and they are bound, in the exercise of a sound discretion, so to do, otherwise, there would be no end to new trials, and the remedy would be worse than the disease. “ Is the court necessarily to grant a new trial,” says Lord Ch. Eldon, (8 Vesey, jun. 169.) “ if material evidence was rejected ? or is it not at liberty, supposing it material, to consider in what degree it is sos and whether the materiality is such, that, because it was rejected, a new trial must be granted ?” We think, therefore, that a new trial ought not to be granted, if the plaintiff will waive the verdict.

Rule granted, conditionally.