15 Pa. 128 | Pa. | 1850
The opinion of the court was delivered by
This is an action of assumpsit, to recover liquidated damages for the non-performance of a written contract. It is not pretended by the defendant that the agreement was performed on his part, but he insists that performance was prevented by the acts of the plaintiff himself. If so, the defendant has a complete defence to the action, as it is unquestionable that one party may show by parol that the other party has waived or prevented performance of a contract, either written or parol. A party who dispenses with or prevents performance of a contract, cannot take advantage of the non-performance by the other: 4 United States Dig. 84 pl. 503, 11 Shep. 36; 7 United States Dig. p. 31, pl. 222; 4 id. 93, pl. 688. The defendant agreed, for a certain stipulated price, to sell and deliver to the plaintiff for the sum and at the time mentioned in the contract, fifteen hundred tons of good soft iron ore, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, W. H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining. It is very plain it was the intention of the parties that the defendant should have the liberty of selecting the ore of the quality described, from either the Montgomery or the Frick mine. His range was not con
But it is strenuously contended, the court erred in instructing the jury that the testimony of Edmund Bullock is important in this cause, on the ground that he was the person mentioned in the agreement, to mine the ore on the land of Montgomery and others. I am free to confess that my first impressions were that the court had laid too much stress on the testimony of Bullock, but on further reflection, I have been inclined to change the opinion first formed. The defendant bound himself to deliver to the plaintiff fifteen hundred tons of good soft ore,, in good order, mined clean and free from dirt, slate, and other impurities, to be the ore mined by Edmund Bullock, on the lands of Alexander Montgomery, George A. Frick, William H. Magill, and Jacob Hibler, where said Bullock is now engaged in mining ; the said ore to be delivered at Chambers’s furnace, in good order, and mined clean and free from dirt, slate, and other impurities. That part of the agreement is certainly not very explicit, but I am inclined to adopt the reading of the defendant’s counsel. The parties would seem to have put great trust and confidence in Bullock, because, I suppose, he was an experienced miner, who had been engaged in the business for many years, and was, no doubt, by reputation at least, well known to both. He was, therefore, constituted in some measure the agent of both in it, as well as the organ of communication between the parties. Unless this was the case, it is difficult to understand why his name, was introduced into the agreement at all, as it would not be needed for purposes of designation, as the mines were sufficiently described by the appropriate names of the Montgomery and Frick mines. If this be so, the court was right in considering his testimony as important, for a refusal to receive the ore from him is the same as if the refusal had been made directly to the defendants themselves. Notice to them would be unnecessary. Indeed, proof of a refusal to him, who certainly was their man of business, would raise an almost uncontrollable presumption that it was communicated to his principals.
In the argument, great stress was laid on the 'receipt of the 16th June, 1846, showing, as the plaintiff contends, that the contract was still in force when the receipt was given. The construction of the receipt, as far as it went, was favorable to the plaintiff in error, but the court properly referred it together with all the other testimony in the cause, to the jury. The court say the receipt speaks of ore to be delivered, and would imply ore which was to be delivered by Donaldson & McQuhae to the Groves, but there is other evidence in the cause, which the jury will also consider, and determine from the whole evidence whether the contract was or was not ended ; they will determine from what took place between the parties. Had the court undertaken to say that the receipt was of itself conclusive evidence that the contract was then a subsisting contract, it would have been erroneous, as undoubtedly it Aras their duty to refer that fact, with the attending circumstances, to the jury.
On a careful examination of the whole case, no error is perceived which would justify the court in reversing the judgment.
Judgment affirmed.