5 Gratt. 179 | Va. | 1848
delivered the opinion of the Court.
In the written contract on which this action is founded, there is no express covenant on the part of White, the appellant’s intestate, to deliver salt to Ton-cray, the appellee, for transportation ; but the agreement of Toncray to do the transportation, and of White to pay him therefor, import an implied covenant on the part of White to allow and permit Toncray to transport the salt, and to furnish him with the agreed quantities for that purpose. The implied covenant of White in this respect is the correlative of the express covenant of Toncray. The latter agreed to transport for White from Saltville, from 1200 to 6000 barrels of salt annually, for three years from the date of the contract, water permitting ; from which is to be inferred an agreement on the part of White, that Toncray should receive so much salt annually at Saltville for transportation, if the state of the water permitted it. If the condition of the navigation should be such that the salt could not be transported, then Toncray was absolved from the obli
The agreement of the parties was not for the transportation of an aggregate amount of salt, in the course of three years; but for the transportation of from 1200 to 5000 barrels of salt in each year of that period. This Court, looking to the nature and object of the contract, held, on the former appeal, that the electiou of the annual quantity, within those limits, was with White the manufacturer, and not with Toncray the carrier. The election of White was, however, determined as to any one year, by the quantity delivered by him in that year; the whole of which Toncray was at liberty to transport in the same year; and if he did so, his right in regard to the quantity to be transported the next year was not thereby affected. But there was a corresponding duty on the part of Toncray, to transport in any one year the whole quantity received by him for that year; and his inability or refusal to do so, could not but affect his right in regard to the quantity to be received the next year.
And so if Toncray had wilfully failed to transport the salt received by him for the first or the second year, he would be equally bound to transport it in the second or third year; and could not withhold it, and at the same time-call upon White to supply what he had already in his own hands.
The construction of the contract, in this regard, contended for by Toncray. would be unreasonable and unjust ; and would have enabled him to defeat the whole purpose of his employer in the agreement for transportation, which was the annual supply of the contemplated markets. It would have put it in his power to defer the transportation of any part of the salt until near the end of the third year, and then flood the markets with
In asserting a breach of the contract by White, whether by refusing to pay for transportation, or by refusing to permit transportation, Toncray must confine himself to a single year, or declare distributively for the several years: otherwise, as may be inferred from what has been already said, there must be inevitable difficulty in ascertaining the rights and obligations of the parties by pleading, and in making up the proper issues of fact. Indeed, it is manifest that much confusion and perplexity have been introduced into the cause, by the mode of declaring adopted by the appellee; who has sought to treat the contract as entire, so far as regards his own obligations; but distributive, so far as regards the obligations of White.
Some obscurity seems also to have been introduced into the cause, by the idea on the part of the appellee, that White was bound to do certain acts preliminary to the transportation of the salt by Toncray ; for example, that White ought to have given notice to Toncray to come and do the transportation, and ought also to have given him notice at what places the salt should be landed, and to what consignees it should be delivered. But this is so far from being correct, that it is obvious in regard to this action by Toncray, (however it might be in an action or plea by White,) the first duty was to be performed by Toncray. It was his business to attend at Saltville, at such times as suited his convenience, to receive the salt from time to time, as he was ready, and commence its transportation ; and he ought to have required not only the delivery of the salt, but the instructions requisite as to its points of transportation, so far as the same were nndesignated by the contract; and if he rashly commenced the transportation without requiring such instructions, any loss to him thereby occasioned is attributable to his own fault.
The principles above declared will serve to indicate objections to a greater or less extent to every count of the appellee’s declaration, and the correctness of the Circuit Court’s decision sustaining the appellant’s demurrer to the fourth count, and its incorrectness in overruling her demurrers to the other four counts. And these views render it inexpedient to notice points ruled by the Circuit Court in rejecting pleas, admitting evidence, and refusing instructions; for as the cause must be sent back for a new trial and new pleadings, we cannot foresee how far those points may again arise in the new state of the pleadings and evidence. To this remark an exception exists in relation to the question as to the extent of the credit to which the appellant is entitled, on account of the loss of salt in the river, in the course of its transportation by the appellee, occasioned by the “staving” or sinking of boats; a question which will doubtless be presented at the new trial, whatever may be the state of the pleadings. On this point therefore we express the opinion, that the appellant can be entitled to no compensation for such loss, beyond the stipulated damages provided for by the contract in such a case. There is a general provision in the agreement, that Toncray should be responsible for salt received for
Judgment reversed with costs, verdict set aside, demurrers to declaration sustained, and cause remanded for a new trial, with leave to the parties to plead de novo.