45 N.H. 405 | N.H. | 1864
The clapboards sent by the defendant to the depot were less in quantity than those specified in the contract, and in part of a different quality, and therefore the plaintiff was not bound to accept them. 2 Parsons’ Con. 163; Chit. Con. 903. Under these circumstances the mere fact that the plaintiff did not within a reasonable time notify the defendant that he did not accept them would no more in law amount to an acceptance or render the plaintiff liable for these clapboards than would a similar omission of notice in case the defendant had chosen to send to the depot any article entirely different from that described in the contract. Whether the plaintiff had in fact accepted the clapboards was a proper question for the jury. Kelsea v. Haines, 41 N. H. 253.
The mere intention of a party not manifested by or accompanying any act or declaration is in general not admissible to affect the rights of another. Gale v. Belknap Co., 41 N. H. 170; Wadleigh v. Janvrin, Ib. 512; Snedeker v. Warring, 2 Kernan, 170; Bank v. Champlain Co., 23 Vt. 186; Hayward v. Bath, 38 N. H. 182; see Gates v. Lounsbury, 20 Johns. 427; Lawrence v. Ocean Co., 11 Johns. 241; Firemen’s Co. v. Lawrence, 14 Johns. 46; Palmer v. Pinkham, 33 Me. 35. But where the intention of a party becomes material, it may
Where the concurrence in intent of two parties is material to be proved, evidence of the intent of one alone cannot avail, Murray v. Bethune, 1 Wend. 191, see Rich v. Jackway, 18 Barb. 357; but this will not necessarily render it improper to prove the intent of each. Blake v. White, 13 N. H. 272. Cases may perhaps exist where a party is precluded by his acts or declarations from successfully asserting an intent inconsistent with such acts or declarations, upon the ordinary principle of an estoppel in pais. 2 Smith’s L. C. 531. See Hibbard v. Russell, 16 N. H. 417. Upon questions of the delivery and acceptance of chattels under a contract of sale, the intention of the parties in doing some acts in relation to the property which is the subject matter of the contract, is often material, Kelsea v. Haines, 41 N. H. 253; and therefore cases may exist where the parties may each testify as to his intention in doing such acts. Of course, where such testimony is admissible, its legal effect must be determined by the principles of law applicable in the particular case.
In the present case there was no evidence that Alvin Taylor was agent for the defendant, and no question of estoppel arises; but there was evidence of certain acts done by the plaintiff in relation to the clapboards, and his intention in doing those acts was material upon the question of acceptance; and, upon the principles stated, it might be proved by himself. As the plaintiff had already testified that he said "if he could sell the clapboards, he would endorse them on the note,” the question excepted to as leading was not objectionable as assuming what had not been stated, and seems merely introductory to the inquiry what else he did, &c., if by his answer to this interrogatory it should appear that he did anything else to sell or dispose of the clapboards, &c., and if he did nothing else it was admissible to elicit that fact. Steer v. Little, 44 N. H. 613. There must be
Judgment on the verdict.
