34 Minn. 39 | Minn. | 1885
On March 1, 1883, defendants entered into a written agreement, with plaintiff, whereby they bound themselves to furnish him “5,280 lineal feet of granite curbing, the same to be in accordance with the plans and specifications for the same in the office of the city engineer of the city of St. Paul, * * * for eighty-five cents per lineal foot; * * * payments to be made monthly, or as often as estimates are made, for all curb delivered, and final payment to be made in thirty days after the last of said curb is delivered.” No time was specified for delivering the curbing, and so the trial court very properly held “that the delivery must be within a reasonable time under the circumstances.”
It appeared that plaintiff had entered into a contract with the city of St. Paul to pave and curb a part of Seventh street, and that he
This action is brought to recover damages for defendants’ alleged failure to perform their agreement as respects the quality and quantity of curbing agreed to be furnished, and the time of furnishing the same. The defendants, in fact, furnished a little more than half of the 5,280 feet agreed, and, the plaintiff having paid $1,800 only on account thereof, they set up a counterclaim for the balance, $584.25. Their answer also alleges that on June 18, 1883, they refused and ceased to deliver any more curbing, because of plaintiff’s failure to pay according to the terms of the agreement for what had been previously delivered; also that they made proper demand for payment, giving plaintiff to understand that they refused to furnish any more curbing unless payment was made as agreed. The charge was very full, clear, and explicit, and among other things the jury were instructed, with reference to the matter of reasonable time, that “if the time within which the plaintiff was required to complete his contract with the city, and the importance to the plaintiff of an early delivery of the curbing in respect to the profitable execution of the contract, and the avoiding of any penalty for its non-execution in time, were communicated to defendants by plaintiff, then it was the duty of defendants to make an honest effort, and to use all reasonable diligence to make an early delivery; and the time within which the curb
The plaintiff’s counsel argues at considerable length that the instructions given were erroneous, because a reasonable time must necessarily have been such as would enable plaintiff to complete his contract with the city by July 21st; so that mere “honest effort” to make seasonable delivery should not absolve the defendants. It seems to us that, upon the evidence in this case, no other answer to the counsel’s argument is required beyond a reference to the general rule above stated as to reasonable time, — a rule supported by Roberts v. Mazeppa Mill Co., 30 Minn. 413, (citing cases,) where it is also laid ■down that ordinarily the question of reasonable time is for a jury under proper instructions.
The other ground upon which plaintiff seeks to maintain his position, viz., that the time of completion, July 21st, is an element of the “plans and specifications” mentioned in the agreement between plaintiff and defendants, is clearly untenable. The learned district judge very properly held that the words “plans and specifications” had reference to the character of the materials and work, and not to the time of completing the contract.
These instructions were given with related requests of plaintiff. Exception is taken by plaintiff to the clause which we have italicized. We have quoted the passage in which the clause complained of is found, in order that its proper bearing and connection may be seen; and in further answer to the argument of counsel in support of his exception, we cite Robson v. Bohn, 22 Minn. 410; Robson v. Bohn, 27 Minn. 333.
This disposes of what appear to us to be the more important questions of law in the case. The other positions taken and points made upon the plaintiff’s brief appear to require no extended comment. They seem to us to relate, mostly, at any rate, to the character and effect of the testimony. This was contradictory and more or less confused; but, after a careful perusal of the settled case, we find ourselves unable to say that there was not sufficient to justify the verdict. It must be admitted to have been rather scant and unsatisfactory in places, but on all material points we think there was fairly something upon which the jury might reach their verdict in the ex-~ereise of reasonable judgment and good sense.
Order affirmed.