Hickock v. Hoyt

33 Conn. 553 | Conn. | 1866

Carpenter, J.

This action is brought to recover damages for the non-fulfillment of a contract, entered into on the 16th day of August, 1862, for the sale of a quantity of blackberry wine. In the first count the plaintiff alleges that the wine in question was “to be delivered by the defendant to the plaintiff, on his request, as soon thereafter as the plaintiff could find proper opportunity to sell the same, on notice thereof to her,” &c. This part of the declaration is not sustained by the finding of the court. The contract, as originally made, was silent as to the time of performance. The legal inference is, that it was to be performed in a reasonable time. Subsequently, but upon the same day, the parties further agreed that the defendant, at the plaintiff’s expense, should cause the wine to be racked or drawn off, when she was to give the plaintiff' notice, and then he was to take and pay for the same. Neither the original contract, nor the contract as modified by the subsequent arrangement, supports the declaration. There is therefore a fatal variance, and the plaintiff is not entitled to recover upon that count.

In the second count it is alleged that the defendant was to deliver the wine, and the plaintiff was to take and pay for the same, within a reasonable time. Perhaps it would have been well to have declared upon the contract as subsequently modified; but we think this count as it now stands sets out the contract according to its legal effect. That such was the legal effect of the contract, as originally made, is clear; and we think the subsequent agreement does not chauge it. That agreement related to the time of performance, and did not otherwise affect the terms of the contract. We think it may be fairly regarded as an arrangement between the parties by which they determined what should be deemed a reasonable time. Taking this view of it enables us to determine this part of the case upon its merits, rather than upon a question of pleading. Assuming then that the second count is good, and adapted to the case, the question recurs, whether the plaintiff is entitled to recover. Or, to state it in another form, did the plaintiff offer to perform the contract on his part within a reasonable timef Strictly speaking this is a question of fact, and should have been directly found by the court below. But as enough is found to relieve the question of all difficulty, we have no hesitation in disposing of it upon the record as it now stands.

If we are right in the view we have taken of this contract, it is clear that it was the duty of the plaintiff to take the wine immediately upon receiving notice that it had been drawn off by the defendant. When that was does not distinctly appear. But it is found that the wine was drawn off in a reasonable time, and notice given; and also that in October or November the plaintiff was particularly requested to remove the wine. From these facts it may be fairly inferred that the wine was ready for delivery on or before the first of November, and that the plaintiff refused to receive it. The excuse for such refusal is, that the plaintiff had not been offered as much for the wine as he thought he ought to have, although he had then been offered $1.25 per gallon. In reply to this it is sufficient to say, that the court has found that the performance of the plaintiff’s contract depended upon no such contingency. Therefore the defendant was not bound to wait until the plaintiff had received an offer which he might deem satisfactory. The plaintiff might keep the wine as long as he pleased, but he had no right to impose upon the defendant the burden of keeping it, at her own risk and expense, while he alone had all the advantages, if any, of the delay.

But if we congede that a reasonable time had not then elapsed, no reason has been suggested, and we think none can be from the case as presented, why the performance of this contract should be delayed for a period of seven months. On the other hand the reasons why there should be no such delay are obvious. The property belonged to an estate in process of settlement, and it was for the interest of the estate that it should be sold at an early day; it was liable to waste by leakage ; it was exposed to a total loss by fire or otherwise; and the defendant, in the mean time, was onerated with the duty of storing and caring for it, besides being deprived of the use of the purchase money. Under these circumstances we do not doubt that a jury would find, and ought to find, without hesitation, that the plaintiff’s refusal for so long a time.was unreasonable., The defendant then was justified in selling the wine to other parties. And the plaintiff cannot justly complain of the want of notice. Notice to him that the property was ready for delivery, and an offer on the part of the defendant to deliver the same, was all that the law required. 1 Swift Dig., 377. Where the title is changed, and the vendor retains the possession as security for the purchase money, and where the vendor sells to other parties for a less price, and seeks to recover the difference from the first ■ purchaser, in these and like cases it is undoubtedly true that specific notice of the time and place of sale should be given to the purchaser. -But in a case like this, where the contract is executory, the plaintiff’s title incomplete, and the right to complete it lost by his own fault, and no claim made on him for damages for not completing it, no such notice is required.

We attach no importazzce to the fact that the plaintiff told the defendant, when the wine was di’awn off, that he had lost the sale of it in the army ; nor to the interview betweezz the parties in the moizth of January following; for it does not appear in either case that the defendant assezzted to any further delay or waived any of her rights.

It was claimed in the argument that the defendant’s failure to tender back the fifty dollars paid, subjected her to damages on the special contract, even though the plaintiff had been otherwise at fault. This cannot be law. I know of no principle that will allow a party himself, without cause, to ^repudiate a contract, and yet recover damages of the other party for not performing it. Eor these reasons the plaintiff is not entitled to recover upon the second count.

The third count is for money had and received. Under this count the plaintiff claims to recover the amount paid on the contract. The consideration upon which this money was paid has failed; and unless there is something in this case to distinguish it from the ordinary case of a failure of consideration the plaintiff must recover. It is not pretended that the plaintiff expressly agreed that a failure to perform his contract should work a forfeiture of the amount paid, and the sum paid was so large as to repel any presumption that such was the implied understanding of the parties. Money paid upon a contract which is subsequently rescinded is never forfeited unless there is an express or implied agreement to that effect. Nor does the defendant resist this claim by offering to recover any damages she may have sustained by reason of the plaintiff’s failure to perform his contract. Indeed the facts found would seem to indicate that .she was benefited thereby rather than damaged. We are unable to discover anything in this case that will justify us in permitting the defendant to retain this money. •

• The superior court is therefore advised to render judgment for the plaintiff, to recover fifty dollars and interest.

In this opinion the other judges concurred.