27 N.H. 360 | Superior Court of New Hampshire | 1853
Nothing is said in the contract about furnishing the scions, but as the plaintiff was to graft.the trees, the inference is that he is to furnish whatever is necessary in order that the trees might be grafted.
The contract was made on the 6th of April. There was evidence that the defendant furnished part of the scions, and that this was done upon his proposition, to which the plaintiff did not object. The case finds that it was doubtful whether this was before or after the contract was made. But the witness testified it was in May, and that seems to be enough to render the evidence competent. The court gave another reason. A witness said that the defendant furnished part of the scions. If another witness says that the defendant proposed to do so, it tends to corroborate the first witness, and on either ground the evidence is competent.
The instructions do not appear to be open to any exception.
The contract was to be performed in 1847 and 1848. The motion in arrest is because the plaintiff excuses a nonperformance in 1848 and 1849. But the^count alleges that he performed it in part in 1847, and offered to complete it in 1848, and that is enough. That he again offered to complete it in 1849 can be no injury to the defendant. Nor is the allegation anything more than surplusage.
Judgment on the verdict.
