28 Vt. 264 | Vt. | 1856
The opinion of the court was delivered by
We think the testimony given by the plaintiff in the present case did tend to show that the defendant, after a failure of the plaintiff to perform strictly according to the stipulations of the special contract, did agree, upon sufficient consideration, to waive such failure, and accept of the remainder of the Coal,
It is true that, if such a contract contain a stipulation to make payments in advance of the delivery of the goods, or performance of service, this does, of necessity, render the covenants independent. But we do not so understand the present contract. In this view of the case, it seems to come clearly within the principle of repeated decisions of this court, following in the line of Porter v. Stewart, 1 Vt. 44. Sherwin v. R. & B. R. Company, 24 Vt. 347.
And, although the promise to waive the contract was after some portion of the coal sought to he recovered had been delivered, and so delivered that probably the plaintiff, if the defendant had insisted upon strict performance of the contract, could not have recovered
Judgment affirmed.