1 Wash. 579 | Wash. | 1889
The opinion of the court was delivered by
A contract was made February 26, 1885, between William Glassford, of the first part, and H. McCartney & Co., of the second part, by which Glassford agreed to freight one hundred tons of produce to the Little Dalles, at the rate of one and one-half cents per pound,
The complaint states: 1. The contract. 2. That later the parties mutually agreed that the dates for delivery should be disregarded; otherwise the contract to remain as before. 3. “ That under and pursuant to said contract the plaintiff hauled sixty-two tons and three hundred and twelve pounds of freight from Spokane Falls to the Little Dalles aforesaid, and remained at all times willing to complete said contract upon his part, and to haul the remainder of said one hundred tons. 4. That the defendants, though requested so to do, refused to permit plaintiff to complete said contract, and to haul the balance of said one hundred tons, and refused further to perform said contract on their part, by reason of which the plaintiff suffered damage in the sum of $1,133.82. Wherefore the plaintiff prays judgment” for that sum,with interest and costs. To this a general demurrer was interposed, which the court overruled. The defendant preserved his exception, and later a trial was had on issue joined. Action overruling said demurrer is now to be reviewed.
The contract, it will be observed from the complaint, was partly performed. As no mention is made in the complaint of payment had on the part performed, we think it maj»-quite as well be assumed that the amount for which this suit is pressed is for that as well as for thatun]Derformed. Of course, if this is so, the demurrer would not lie. It is said a mathematical calculation will show that the result of the unperformed part, atthe contract price, compared with the aggregate claim, will show the suit to be for the breach. This may be a satisfactory mode for the defendants to arrive at the meaning, but we take the plain reading of the com
The real contention of the appellee, however, seems to be that the contract is wanting in mutuality, binding only the appellee to carry the freight, and not requiring appellant to furnish any; or, even if he is so required, that by the subsequent waiver of time, he is relieved from any time for performance. The rule that, if no time is fixed for the performance of an agreement otherwise regular, a reasonable time will be presumed to have been intended by the parties, we think settles the claim of want of time.
The remaining question is whether appellant is equally bound by the contract set out above. It is evident that the consideration of appellee’s assuming to carry said produce and incurring such liability was the implied promise of appellant to furnish it; and we believe the law will just as clearly and conclusively presume or imply such a promise on his part as if it had been set out in express words. To take any other view of a contract such as this would permit, in our judgment, a fraud and overreaching. There was a contract on the one part to carry, and on the other a contract to pay so much per pound; and there was from this just as clearly a corresponding and correlative obligation to furnish for carrying.
In Sedgwick’s Leading Cases on Damages, p. 382, is the case of Black v. Woodrow, 39 Md. 194, which seems to us decisive of this case, if the first objection herein made is not
The action of the court below was correct, and it is therefore affirmed.
