McNish v. Reynolds, Lamberton & Co.

| Pa. | Nov 8, 1880

Mr. Justice Trunkey

delivered the opinion of the court,

Van Vleck contracted to sell to McNish five thousand barrels of oil at $2.51J per barrel, to be delivered at seller’s option, at any time from April 20th to December 31st 1877, to be paid for as delivered. McNish testifies, that on the last day of June, at Titus-ville, Bettes, acting for the seller, tendered the oil to the buyer, who answered that he was not in condition to take the oil and pay for it, but could if he had a little time; whereupon the agent referred him to his principal. On the same day he went to Oil City and there met the principal, Van Vleck, and what passed he states thus : “I told him that owing to the failure of the bank my funds were all locked up in the bank; that I needed a little time to make different arrangements, which, if he would grant, I would take the oil. He asked me how long I wanted. I told him I could arrange for thirty days. He replied that if I would take the oil up he would give me the month of July to take it in. I told him I would arrange to take the oil in the month of July, and that was agreed upon, and we separated.” He also said the tender was not withdrawn. For the purpose of the present inquiry this statement must be taken as true. It may have been exceedingly generous, or very foolish, in Van Vleck to change the contract into a buyer’s option for one month, and the jury might not have believed a word of it; but if they did believe it they were instructed that, unless the tender was withdrawn, the plaintiff could not recover, “ without a new and sufficient consideration, of which there is no evidence.” Whether this instruction was correct is the sole question here.

An accepted rule, applicable to such contracts as these parties originally made, was stated in Goss v. Lord Nugent, 5 B. & Ad. 58, as follows: “ After the agreement has been reduced into writing, it is competent to the parties, at any time before the breach of it, by a new contract not in writing, either to waive, dissolve or annul the former agreement, or in any manner to add to, or substract from, or vary or qualify the terms of it, and thus to make a new contract; which is to be proved, partly by the written agreement, and partly by the subsequent terms engrafted upon what will be thus left of the written agreement.” It is manifest from the charge, that the learned judge, recognising the rule, held that if the new contract was made at the time the oil was tendered, it was after the breach of the former.

If, at the moment for performance of a contract by one party, both agree to a postponement, is the contract broken ? A. sells B. a horse for a stipulated price; the horse to be delivered and money paid on a certain day. At the appointed time A. tenders the horse; B. says, I am not ready, but if you will wait till tomorrow I will take the horse and pay you, to which A. agrees. The new contract is as valid as was the old. The mutual promises, the one to deliver and the other to accept and pay, were ample consideration to sustain the new : Carrier v. Dilworth, 9 P. F. Smith 406. Can it be that in such case the old was broken and A. could recover damages for the breach '! If his right of action accrued at all it was at the instant he agreed to a change of time for delivery and payment, instead of demanding strict performance. The parties carried the yet .unbroken contract into a new one, and neither has a just claim for damages.

On the day the oil was tendered the parties mutually agreed that the buyer might take it at any time in the month of July. Had Van Vleck refused to extend the time, it was not then too late for McNish to perform his agreement. True, he said he was not in condition to do so and asked time; but had his request been denied, possibly he would have succeeded in performance. The oil was due, not past due. Negotiations, begun immediately on its becoming due, ended in an agreement for extension of time before it had become overdue. Nothing in this agreement involved a withdrawal of the tender — the seller was to keep the oil ready for. the time named, at the buyer’s option, not his own. Every reason which would enforce this contract, had it been made before the day of the tender, applies now ; for, made at the time the oil could have been taken, the party would be liable to be thrown off his guard, or to be defrauded, if the other could treat it as invalid, same as if made before the day. But after breach of a contract, and right of action accrued therefor, the case may be governed by other principles.

Having reference to the facts as alleged by plaintiff, and which the jury would have found had they believed him, we are of opinion it was error to affirm the defendant’s third point; and in so far as this error pervades the matter of the other assignments there was error.

Judgment reversed, and a venire facias de novo awarded.