76 W. Va. 103 | W. Va. | 1915
Lewis’ judgment for $49.41, recovered in a justice’s court, was carried into the circuit court by an appeal. The total amount claimed in his bill of particulars is $110.60. On the conclusion of his evidence a verdict against him was found by direction of the court, and the judgment to which he obtained this writ of error was rendered in accordance with the verdict.
Taken as true, tinder the rule applicable to motions to exclude, they being in some respects the equivalent of
The delay in arrival did not justify refusal of the promised employment. There was, of course, an absolute undertaking as to the time of the beginning of the journey, but none as to its completion. That the plaintiff had no control of the means of travel and that railway trains are sometimes unavoidably delayed were facts well known to both parties and in view of which they obviously contracted. As to the arrival, the contract was, therefore, manifestly conditional upon the maintenance by the railroads of their published schedules and connections. The beginning of the journey was within the absolute power and control of the plaintiff. Its completion was not. It would be too much to suppose he intended to assume the risk of the failure of railway connections, without an express agreement on his part to do so. Acceptance of the offered position and entry upon the journey necessitated the giving up of his residence, disposal of his household goods or the expense of their shipment, abandonment of the position he then had and the expense of a 1300 mile trip. It is highly improbable that he would have accepted the offer, if he had been told he must guarantee his arrival on schedule time. Both parties could well assume the connections would be made and both knew the delays incident to travel are ordinarily not of such length as to make them material. The time within which an act is to be done is not always essential, and, when the time specified for performance of a contract is relatively unimportant, it is not of tbe essence thereof, unless made so in express terms, or it appears to be a condition rather than a covenant. Adams v. Railway Co., 64 W. Va. 181. No terms used by the parties imported intent to make the time of arrival essential. Though the plaintiff promised to arrive on Thursday and the defendant expressed satisfaction with that date, neither used any word signifying intent to make the contract depend upon that fact for its binding force or validity. On the contrary, the defendant’s conduct indicated allowance of reasonable latitude as to time. It first said come
Neither the offer of employment different from that promised nor of the promised employment, after what the jury could well say was tantamount to an absolue refusal, could avert the consequences of the breach. An absolute refusal by one party to a contract to perform it releases the other. Swiger v. Hayman, 56 W. Va. 123; Shaw v. Life Ins. Co., 69 N. Y. 286; Traver v. Halstead, 23 Wend. 66.
Being clearly erroneous, the judgment will be reversed, the verdict set aside and the case remanded for a new trial
'Reversed and remanded.