34 Vt. 127 | Vt. | 1861
The plaintiff’s evidence on the trial of this case tended to show that on the 25th November, 1858, or about that time, he made a contract with the defendant for the purchase of his lot of wool,j estimated to be about twenty-five hundred pounds, at the price of forty-six cents per pound, and that, by the contract, the wool was to be paid for, with interest, and taken away by the plaintiff, by the 15th December following ; that, at the time of making the contract, the plaintiff paid fifty dollars to the defendant as earnest money or in part payment for the wool, and that, on the 11th December, 1858, it was agreed between the plaintiff and the defendant that the time for the payment of the balance of the purchase money,’ and for the delivery of the wool, should be extended from the 15th December to the 1st day of February following. Neither the original contract nor the agreement for its extension were in writing. The only question made upon this part of the case bythe defendant, is that this enlargement of the time for the performance of the original contract constituted a new contract, and that, as it was not in writing and no additional earnest money was paid, it falls within the statute of frauds. Where a particular time is appointed by the terms of the contract of sale for the delivery of and payment for property of a fluctuating value, and the payment and delivery are to be concui-rent acts, the time so appointed is of the essence of the contract. The original contract for the purchase and delivery of the wool was taken out of the statute of frauds, when it was made, by the payment and acceptance of the eai-nest money. While it remained executory, and in unquestioned force, it was varied by the agreement of the parties only in respect to the time for its performance, An alteration by parol of the terms pf a written pontrapt under the provisions of the
The question then arises, whether the plaintiff’s evidence tended to show such h waiver or extensión by the defendant of the time for the performance of this contract as bound him to accept the plaintiff’s offer of performance made on.the 2d day of February, 1859. It is claimed on the part of the plaintiff that the evidence in respect to the interview between himself and the defendant on the 27th January, 1859, tended to show such a modification of the terms of the original contract. At the time of this interview, the contract as limited to the 1st February was in admitted force ; and the plaintiff’s testimony tended to show that he, with one Bottomly, a wool dealer, went to the defendant’s house in Clarendon, and examined the wool, and that the defendant assisted in the examination, and then knew that the plaintiff was negotiating with Bottomly, for the purpose of selling to him this lot and other lots of wool; and the proof is, that the plaintiff told the defendant, on that occasion, that he should probably sell the wool to Bottomly, and that he would come and
The plaintiff offered to prove on the trial that the defendant sold his wool to one Langdon on the 1st day of Februarg._or. before the time for the performance of the contract between the plaintiff and defendant had expirecC Understanding this as an offer to prove such a sale of the wool by the defendant as passed, the property in it from him to Langdon, so that the defendant thereby disabled himself from performing his contract with the plaintiff, we regard this evidence as clearly admissible. A sale by the defendant to a third party before the time for the performance of his contract with the plaintiff had expired, was a breach of that contract, which, whether it was known to the plaintiff or not, excused the plaintiff from any duty to tender a performance of it on his part, and it would entitle him to recover from the defendant, under the money counts, the money which he had paid under the contract. And if, after such sale by the defendant to a third person, the plaintiff had, before the expiration of the time limited for the performance of his contract, tendered a performance of it on - his part 'to the defendant, he could have maintained an action against the defendant for the \ recovery of proper damages for such breach of contract. Bowdell v. Parsons, 10 East. 369. Newcomb v. Brackett, 16 Mass. 161. Addison on Contracts, 236.
We have not considered the questions of variance between the plaintiff’s proof and his declaration which were suggested on the argument; as, in the view which we take of the evidence, it tended to support the money counts in the declaration, even if it was applicable to no other counts. As the result of our conclusions, the judgment of the county court for the defendant is reversed, and the cause is remanded to that court for a new trial.