94 Vt. 271 | Vt. | 1920
The parties, on December 6, 1916, entered into a contract in writing, by the terms of which the defendant sold to the plaintiff, and agreed to deliver f. o. b. cars on the D. & H. Railroad, during the winter of 1916 and 1917, one hundred and twenty-five to two hundred cords of four-foot' spruce pulp wood, for $8.25 per cord. The contract contained other .provisions not necessary to notice. The defendant admitted its execution and his failure to deliver the wood, which was the breach assigned.
His defence was that the contract was so modified by parol that he was to deliver to the plaintiff on board the cars at Rut-land seventy-five cords of pulp wood, and as much more as he could draw up to one hundred and twenty-five cords, as fast as the same could be hauled from Shrewsbury to Rutland, at $12.50 per cord, and the plaintiff was to return the original contract; that he drew the wood to Rutland, and was ready to perform his part of the modified contract, but was excused from so doing by the refusal of the plaintiff to return the original contract. At the close of all the evidence the court, subject to the defendant’s exception, directed the jury to return a verdict for the plaintiff for the damages they found he had sustained by reason of the defendant’s failure to fulfill the original contract.
“When the performance of the new promise was the thing to be received in satisfaction, then, until- the performance, there is not complete accord; and the original obligation remains in force.” Kromer v. Heim, supra, and cases there cited. Frankfurt-Barnett Co. v. William Prym Co., 237 Fed. 21, 150 C. C. A. 223, L. R. A. 1918 B, 602.
The plaintiff offered the defendant an “increased price,” and finally $12.50, per cord, for the Shrewsbury wood, to be delivered on the cars as soon as it could be drawn; and the defendant promised to deliver it. The first question to be determined is whether the evidence tends to show that the plaintiff accepted the mere promise of the defendant in satisfaction of the original contract; because it is admitted that the wood was not delivered.
The defendant offered no direct evidence to show that he accepted the'plaintiff’s offers, or any of them; but in his brief he calls attention to testimony of the plaintiff relative to a conversation that took place in December, 1917, which he claims shows such acceptance. The plaintiff testified: "A. I insisted upon the contract being filled, and I offered him a bigger price if he would go to work and fill the contract. Q. What did he say whether he would or would not? A. I.understood that he would. Q. What did he say about it? A. He said that he would.”
We think'that this action can be maintained unless the plaintiff is barred by his refusal to return the original contract to the defendant. The only evidence to which the defendant calls attention in his brief to support his claim that the plaintiff agreed as part of the modified contract to return the original contract is the following from the cross-examination of the defendant: ‘ ‘ Q. And clear down to sometime, I think you stated in the spring of that year, he was still insisting that he wouldn’t give up the old contract? A. No, he promised me several times that he would. Q. (By the court.) On what conditions was he going to give it up? A. He said that he would on condition that I would ship some wood. ’Q. You demanded one of two things, either a surrender of that paper, or an absolute release from it before you would ship a stick of wood to him ? A. That' was his agreement with me. Q. Do you answer that yes or no ? A. Yes. ” And this is the only positive evidence in the case of what the agreement on this subject was. The defendant argues that this evidence tends to show that the plaintiff agreed to return the original contract to him, or release him therefrom, before the wood was shipped.
We think it doubtful if the evidence quoted, taken as a whole, has such tendency. In answer to the direct question by the court, “On what condition was he going to give it up?” referring to the original contract, the defendant testified, “He said he would on condition that I would ship some wood. ’ ’ This answer seems to have been given understandingly, in reply to a perfectly plain question, and it does not appear that the later testimony was an attempt, even, to modify or change this answer.
If the contract were to be given up “on condition that” the defendant “would ship some wood,” he clearly was not entitled to demand it before he shipped any wood. But, however that may be, it is not claimed that the plaintiff agreed to return the original contract before the wood was loaded into the cars; and the defendant not only refused to ship the wood until the contract was returned, or he was released from a performance of it, but he refused to load it into the cars. The defendant testified
At the time it is claimed the plaintiff refused to return the original contract, and thereby released the defendant from fulfilling the modified one, the defendant had only about two carloads of wood in Rutland, the balance still being in Shrewsbury, and he refused to load into cars what was in Rutland until the old contract was returned. This was a condition that, even on his own evidence, he had no right to impose.
We do not think this claim tenable. The written contract was executed by the plaintiff in his own name, and so far as appears the Union Bag & Paper Company was not known in the transaction. The plaintiff, therefore, can maintain the suit in his own name, whether he contracted for himself or an undisclosed principal. Camp v. Barber, 87 Vt. 235, 88 Atl. 812. As was there said: ‘ This rule works no injustice to the other party to the contract, since he may avail himself of all defences that are good, either against the agent or the principal. ’ ’ It would seem to follow, therefore, that the rule of damages must be the same whether the plaintiff contracted for himself or fór the Union Bag & Paper Company. We think that the evidence was prop
The defendant excepted to the action of the court in submitting the case to the jury upon the original contract. In view of our disposition of the exception to the action of the court in directing a verdict for the plaintiff, it is not necessary to consider this exception.
Judgment affirmed.