| W. Va. | Jan 15, 1869
This was an action of assumpsit to recover damages for the refusal of the defendants to receive and pay for divers fruit trees and grape vines alleged to have been delivered or tendered by the plaintiff on contract.
I think the demurrer to the declaration was properly overruled, because the declaration states a case distinctly and formally.
The special plea was properly rejected, it being substantially the general issue which had been pleaded. To the objection of the written contract as void for the want of the proper stamp several answers may be given.
1st. It was stamped with two five cent revenue stamps, when the act of Congress of June 30th, 1864, (the contract being dated September 22nd, 1864,) required only one stamp of five cents.
2nd. The act only declared invalid those instruments, documents, and papers which were made, signed or issued, accepted or paid, without being duly stamped, with intent
3rd. Without expressing any opinion as to the validity of the act or the competency of Congress to pass any act determining what evidence shall be admissible in the State courts, it is sufficient in the present case to say, that when Congress shall so declare in express terms, it will then be time enough to consider the subject. It would not be becoming to suppose Congress intended by implication or doubtful construction to assert such high prerogative save . over the courts of the national government.
In this view of the case the act of Congress does not in terms nor by necessary import relate to the State courts; and this view of the case is fully sustained by the repeated decisions of the supreme court of Massachusetts, in the case of Carpenter vs. Snelling, 97 Mass., 452" court="Mass." date_filed="1867-10-15" href="https://app.midpage.ai/document/carpenter-v-snelling-6415090?utm_source=webapp" opinion_id="6415090">97 Mass., 452, and Lynch vs. Morse, Ib, 458. That court in the former case said, “this provision can have full operation and effect if construed as intended ■ to apply to those courts only which have been established under the constitution of the United States,- and by acts of Congress, over which the Federal legislature can legitimately exercise control, and to 'which they can properly prescribe rules regulating the course of justice and the mode of administering justice. We are not disposed to give a broader interpretation to the statute. We entertain gravé doubts whether it is within the constitutional authority of-Congress to enact rules regulating the competency of evidence on the trial of cases in the courts of the several States, which shall be obligatory upon them. We are not aware that the existence of such a power has ever been judicially sanctioned. There are numerous and weighty arguments against its existence. We cannot hold that there wras an intention to exercise it where, as in the provision now under consideration, the language is fairly susceptible of a meaning which will give it full operation and ef'-> feet within the recognized scope of the constitutional authority of Congress.”
Another question to be determined is, whether the under-’
The object in view must weigh in giving construction to the language of the parties whose intention is supposed to be expressed in the terms used. Had the undertaking been to deliver such trees in the spring, no one would pretend it might be done until the last of the spring months, for that would defeat the object iu view, and no prudent and sensible man would attempt to transplant trees to the last of May, when they would almost surely die. In such a case there can be no doubt that an undertaking to deliver in the •spring would be held to mean that part of the spring properly suited and usually adopted for transplanting such trees. And the same rule must equally apply in the case of an undertaking, as Ha the present, to deliver in the fall.
. The trees in question were delivered, or alleged tobe delivered, on the 22nd day of November, and the weight of the testimony shows that to -be later .than the proper and usual fall season for such purpose.
The plaintiff then had no right to deliver and require the defendants to receive the articles in question at that unseasonable period, as well as unseasonable and inclement iu fact.
But even if it had been in time, where no day was specified, and the plaintiff might at his option select within the limited period of the fall the day of delivery, he should give to the other party reasonable notice. And more especially would this be necessary .in the case of perishable articles which must be provided for promptly or be lost, and where much preparation .may be required for the purpose. But no such notice was .given in time an this case.
But there is's-tilkanother fatal objection to the verdict and judgment in this case,.and thatis, the recovery is for the whole
For the foregoing reasons, I think that the objection to the admission to the paper of September 22nd, 1864, relating to the purchase of trees, &c., signed by the defendants, as evidence to the jury, was properly overruled.
And the defendant’s two instructions, based on the assumption that the jury to find for the plaintiff must first find from the evidence that the plaintiff' did, in fact, deliver, &c., were properly .refused, because the plaintiff was only bound to prove the allegations of his declaration, and they were not that he delivered, but that he ■tendered and offered io deliver then and there, ,&c.
The verdict was not sustained by the evidence, and the court erred in -overruling the motion to set it aside.
I think, therefore, that the judgment of the court below should be reversed with costs, the verdict set aside, and the cause remanded with instructions to grant the defendants a new trial if .asked, and for further proceedings to be had therein, in conformity with the principles above .indicated.
Judgment reversed..