Warren v. Bean

6 Wis. 120 | Wis. | 1858

By the Gouri,

Cole J.

We are clearly of the opinion that a new trial must be granted in this case. The plaintiff below and defendant in error here, brought an action of covenant upon, a contract under seal, in which on his part he had agreed to do certain work at the Big Bull Palls, on the Wisconsin River; such as blasting out rock in and along the channel of the river, and putting in and enlarging a slide at that place, and to receive as consideration therefor the price and sum of two hundred thousand feet of pine lumber, of a certain quality, to be delivered to him by the defendant below, (and others) on the full completion of the work according to the stipulations of the agreement The plaintiff, in the language of the contract, was to perform the work during the present winter months, and to complete the same in time for the first wafer of the coming spring, agreeable to and in accordance with the stipulations and conditions of this article of agreement,” &c., and the article of agreement bore date, December 15th, 1851. The declaration contains one count upon the agreement, setting it out in terms, and alleges that the plaintiff had fully performed all the conditions of the contract by him to be kept and performed. Upon the trial, the plaintiff failed to show that he performed the work within the time specified in the agreement, and a motion for a nonsuit was made for this reason; but the motion was denied. There was evidence showing clearly that the work was not all done until the fall and winter of 1852; and also some tending to show that one of the parties to the contract, Goodrich, received the work without objection, and had requested the plaintiff not to put in tbe dam in tbe spring of 1852, “ as it would turn too much water on tbe slide.” Some instructions were asked for by tbe defendant, and refused: .and some instructions were given to tbe jury which we deem erronious; but it will not be necessary to refer to these various instructions with more particularity, as they will all be substantially disposed of in our observations upon tbe case.

Since tbe plaintiff’s right of recovery upon tbe contract depended entirely upon tbe performance of tbe work, on bis part, according to its conditions, it is manifest that it was essential for him to allege performance iñ bis declaration, or set forth in excuse, facts and circumstances which would operate as a waiver by the defendants, of a performance according to its terms, and support this allegation by bis evidence. This is a very familiar and well settled rule of pleadings and practice, as tbe following authorities among many others to the same effect, fully establish. Kellogg et. al. vs. Nelson 5 Wis., R., 125; 1 Ch. Pl., 325, et seq; 2 Greenl. Ev., § 235; Porter vs. Rose, 12 John., 208; Moakley vs. Riggs, 19 Id., 68; Couoh vs. Ingersoll, 2 Pick., 292; Pomeroy vs. Gold, 2 Met., 500.

On an examination of this agreement, we have no kind of doubt but tbe plaintiff’s right to recover, depended upon his performing the contract on bis part according to its terms, or bis showing some good excuse for not doing so. The performance of tbe work in a specified time, and in a certain manner, was tbe sole and only consideration for tbe agreement of the defendant to deliver tbe lumber. The time in which the work was to be done was a material, and might have been an all important condition of the contract. It was undoubtedly competent for the parties to waive the condition, and enlarge tbe time in which the contract was to be performed; and as already observed, an averment of this fact in the declaration, and evidence in support of the averment, might have shown a sufficiently good and legal reason or excuse for the non-performance as agreed upon. But as tbe case stood upon the pleadings, tbe plaintiff was required to show a full performance within the time mentioned, as that was a condition precedent to his right to recover. It has been insisted, upon the argument of the counsel for the plaintiff below, that the time in which the contract was tobe performed was not material,and that the plaintiff might recover although he did not and could not show that the work was all done during the winter and following spring after the contract was made. But we do not think the contract will admit of any such construction. The consideration for the defendant’s undertaking was the performance of the work according to the terms of the contract; and most certainly the time in which the work was to be done was as much a condition as the manner in which it was to be performed. It is quite true that there is ’ a certain class of cases, such as where money is to be paid on a particular day, in which courts of equity will hold that time is not material, or of the essence of the contract so as to defeat a party’s rights who fails to pay the precise day the money becomes due. But the doctrine of those cases has no application whatever to the one under consideration. Here it does not admit of doubt but that the time of doing the work was a most essential condition of the contract, and the plaintiff having averred foil performance, was required to show it according to its terms. Instead of doing this, he was permitted to show that the work was completed some time after the period mentioned in the contract, and that there had been an enlargement of the time, or an acceptance of the work, and the court instructed the jury, in effect, that the establishment of these matters in evidence, entitled the plaintiff to a recovery for the contract price of the work. But it is very obvious that such testimony did not support the allegations of the declaration, and ought not to have been admitted. The parties had made up an issue upon the performance of the contract according to its terms, and the evidence should have been pertinent to the issue joined. It might work'the greatest injustice to permit a party, after having averred an actual performance of a condition precedent, to come in and show some excuse for, or waiver of, the condition precedent. No notice was given to the defendant by the pleadings that any such evidence would be offered, and it was clearly inadmissible, under tire allegations of tire declaration. Little et al. vs. Hollamd, 3 T. R., 590; Phillips vs. Reon, 8 John., 392; Freeman vs. Adams, 9 Id., 115; Hasbrouck vs. Tappen, 15 Id., 204; Judd vs. Schroppell, 4 Cow., 566; Crandall vs. Clark, 7 Barb., S. C. R, 169; Baldwin vs. Munn, 2 Wend., 299; Oakley vs. Morton, 1 Ker., 25; 1 Ch. Pl., 326; are strictly in point upon this question, and are entirely conclusive of the law upon this subject. The plaintiff should have framed his declaration so as to have met his evidence. The judgment of the Circuit Court is reversed, and a new trial ordered.