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Coit v. Houston.

think the circumstance of the plaintiffs' having previously, on the 1st February, offered to sell to Mr. Dodge the coal of the cargo of the ship New York, saying, that they were obliged to take them back, cannot, in opposition to this evidence, be considered as any proof of their having actually been delivered or received by the plaintiffs. Allowing that circumstance its utmost weight, it is evidence only of a constructive, and not an actual delivery.

It is therefore certain, that the contract was never carried into effect; that the accord was never, in fact, executed, and, of course, that the defence is not maintained, unless it be on the ground of the tender, and refusal to accept. I consider it as equally clear, that by force of the contract alone, which was merely executory, the property was not changed; but on making the tender, if that was competent, the defendant had an election to consider it changed, and to become the bailee for the plaintiffs, or to affirm the property to continue in himself, and demand the difference between its actual value and the price agreed upon. If he elected to consider the property changed, it would remain in his possession at the charge and risk of the plaintiffs, and subject to their direction. He could not, in the character of bailee, dispose of it for his own. benefit. The moment he did so, he treated it as his own, and affirmed the property to continue in himself, and could only demand the difference between the value and the price which was stipulated. The same rule prevails in the civil law, (1 Domat, tit. 2, s. 4, art. 7,) by which it is declared, "that if, in default of payment of the price, the seller finds himself obliged to detain or take back the thing sold, and its value be diminished, the buyer will be bound to indemnify the seller for this diminution, as far as the price which was agreed on amounts *to." "And this rule," [*256] it is added, " is a consequence of the nature of the contract of sale, for the sale being perfected, the full price is due, whatever change may happen to the thing sold." I consider this doctrine as recognized in our own courts, in the case of contracts for stock, and particularly in the case of VOL. III.

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Coit v. Houston.

Radcliff & Heermance v. Yeomans; and it appears to me to prescribe the just and rational rule on the subject.

I therefore think that the defendant, by the sale or disposition of the coal subsequent to the tender, determined his election to consider the property as his own, and cannot afterwards demand the full price for which they were sold to the plaintiffs. He cannot retain the whole property, and at the same time demand the whole price. He is entitled to recover, in damages, a sum equal to the difference in value only, and, of course, the verdict which allows him the whole price, ought, in my opinion, to be set aside. It is unnecessary to say whether such damages could be set off in the present action.

KENT, J. Without examining particularly all the questions raised, I think this case may be decided upon this, single point, whether there was evidence of a satisfaction. received, or performance tendered, sufficient to warrant a verdict.

There can be no doubt of the law, that an accord executory is no bar, and, on the other hand, that an accord executed is a satisfaction. (2 Hen. Black. 318, 319.) So if a contract be to pay money, and by an accord there be given. other things, as a horse, or gold ring, in satisfaction, it will be good. (9 Co. 79, a. b.) Again, if an accord be executory, in the first instance, and be afterwards executed at a future day, it is then good. The case in Roll. Abr. (tit. Accord, 129, pl. 14,) is to this effect: "If, as the case states, an accord be, that the defendant wil! do a certain thing at a future. day, in satisfaction of the action, and he does it at [*257] the day, this is a good bar to *the action, although it was executory at the time of the accord made, since he hath accepted it in satisfaction."

In the present case, there was evidence that the coal, was ready to be delivered to the plaintiffs, in pursuance of the agreement which they had accepted; that it was generally of the quality specified, and that there was a sufficient quantity ready; that between the 25th and 30th December, 1800,

Coit v. Houston.

that is, immediately after the agreement was made, the defendants repeatedly offered the coal to the plaintiffs, and they said, at one time, they would call the next morning and look at the coal, and at another time, that they would call and bring away the coal, and send a person to examine it; that, afterwards, on the first of February following, they offered for sale the coal of the cargo of the ship New York, saying they were obliged to take it back.(d) From these. facts, the jury might infer that the defendant had performed the agreement upon his part, by an acceptance on the part of the plaintiffs; and it may be held that the plaintiffs were properly concluded or estopped by their own declarations made at the time of the offer, and their act in pursuance thereof, from denying an acceptance of the coal.

Upon this ground alone, the verdict may be permitted to rest. The justice of the case is clearly with the defendant. The case shows the many uniform and sincere efforts on the part of the defendant, to fulfil the agreement which he had made with the plaintiffs, and it shows also efforts on the part of the plaintiffs, to avoid a performance of the agreement they had accepted from the defendants.

If, therefore, we find declarations and acts of the plaintiffs, at one time, sufficient to form a basis for a conclusion against them, a jury were well warranted to lay hold of *those declarations and acts, and bind the [*258] plaintiffs to them.

It is unnecessary, perhaps, to discuss the rights of the parties as to the coal, in consequence of subsequent waste or loss of them, as they lay in the yard, or in consequence of the subsequent sale of the residue of them by the defendant after the suit was brought. In the view I have taken of the case, the defendant became trustee to the plaintiffs, for the safe keeping of the coal.(e) The modification and contingencies under which the plaintiffs accepted of the coal,

(d) [Old note.] See Chaplin v. Rogers, 1 East, 192.

(e) [Old note.] See Pothier, Contrat de Vente, p. 2, c. 1, s 3.

Coit v. Houston.

are not now material. It is sufficint to say, their acceptance was sufficient to give the defendant a right to the note in lieu of which the coal were received, and, consequently, to bar any action the plaintiffs might afterwards bring upon the note. If concluded at all, they are equally so against alleging any imperfection in the sale of the coal, to do away the force of their own declaration and act.

However, I press none of these points. The evidence tended to the conclusion drawn by the jury; and as the court of K. B. (2 Term Rep. 5,) observed, on a like motion for a new trial, that as it did not require much penetration to see where justice lay, they would not exercise their discretion in sending down the cause to be retried on a technical objection in point of law. My opinion, therefore, is, that the motion of the plaintiffs ought to be denied. LEWIS, Ch. J. not having heard the argnment, gave no opinion.

Motion denied.(ƒ)(g)(h)

(f) [Old note.] See Harrison v. Close and Wilcox, 2 Johns. Rep. 448; Bayley and Bogert v. Ogden, 3 Johns. Rep. 399; Slingerland v. Morse, 8 Johns. Rep. 474.

(g) An accord must be executed before it imposes any binding obligation upon the parties. (Brooklyn Bank v. DeGranio, 23 Wendell, 342. Russel v. Lytle, 6 Wendell, 390. Seymour v. Minturn, 17 Johnson, 169. Anderson. Highland Turnpike Co. 16 Johnson, 86. Dederick v. Lehman, 9 Johnson, 333, Watkinson v. Inglesby, 5 Johnson, 386. 2 Washington C. C. 180. 5 New Hampshire, 136. Ballard v. Nooks, 2 Pike, 45. Jones v. Bullitt, 2 Little, 49, 4 Little, 242. Bullen v. McGillicaddy, 2 Dana, 92. Spranebarger v. Dentler, 4 Watts, 126. Frost v. Johnson, 8 Haminoud, 393. Ellis v. Belzer, 2 Hammond, 91. See Fellows v. Stevens, 24 Wendell, 294; Bac. Ab. Accord, A.; Com. Dig. Accord, B. 4; Allen v. Harris, 1 Ld. Raym. 122; Lutw. 1538, S. C.; Lynn v. Bruce, 1 Hen. Bla. 317; Drake v. Mitchell, 3 East, 251; Collingbourne v. Mantell, 5 M. & W. 289 ; 7 Dowl. 518; Reeves v. Hearne, 1 M. & W. 323; and see particularly, per

(h) If a creditor refuses to accept goods when properly tendered, the property nevertheless passes to him, and the relation of the parties is changed to that of bailor and bailee. (Lamb v. Lathrop, 13 Wend. 95. Chipman on Contracts, 51-56. 2 Greenleaf's Ev. ed. 1846, § 610. 3 Stark. Ev. ed.

Coit v. Houston.

Tindal, C. J., in Bayley v. Homan, 5 Scott, 94, 103, 104; 3 Bing. N. C. 915, S. C.; Edwards v. Chapman, 1 M. & W. 231; Chitt. Cont. ed. 1846, p. 760.) In Russell v. Lytle, (cited supra,) it was held that to an action of debt on bond, for the payment of money, a plea averring an agreement by the obligee to accept a surrender of lands, mortgaged as collateral security, and a tender of performance by the defendants, is not a bar, that an accord must be executed; and mere readiness to perform, is not sufficient; Mr. Justice Marcy said, "If the agreement stated in the plea is a defence to this action, it must be as an accord and satisfaction. To make an accord good, it must be in full satisfaction. (Comyn's Dig. tit. Accord, B.) Where an accord is relied on, it must be executed. (3 Black. Com. 15.) Readiness to perform is not sufficient. (Comyn's Dig. tit. Accord, B. 4. Roll. Abr. 129, b. 17.) In Lynn v. Bruce, (2 H. Bl. 317,) which was assumpsit for the composition agreed to be given to the plaintiff for his debt due on a bond, it was held that the action would not lie. Lord Ch. J. Eyre remarked: ・ Interest reipublicæ ut sit finis litium. Accord executed is satisfaction; accord executory is only substituting one cause of action in the room of another which might go on to any extent.' In Allen v. Harris, (1 Lord Raym. 122,) it was decided that an accord, before execution, is no bar. This has been so often ruled, that it was said in that case, that a decision to the contrary would overthrow all the books. The cases in which the question has been so often raised and decided, that an accord executory could not be enforced, arose on pleas, as here, in bar of the original action.

Part payment and an agreement to take the residue at a future day, cannot be pleaded as satifaction in bar, to debt on bond. (9 Reports, 79.) Balston v. Baxter, (Cro. Eliz. 304.) In the latter case the court say: This is

1842, p. 1072. 1 Wheaton's Selwyn. ed. 1848, p. 115. 2 id. appendix, p. 63. 4 Kent's Comm. 507, 508, 509. Aldrich v. Albee, 1 Greenleaf, 120. Howard v. Miner, 2 Appleton, 325. Mitchell v. Merritt, 2 Blackford, 87. Barker v. Pakenhorn, 2 Washington C. C. 142. Shannon v. Comstock, 21 Wendell, 457, 460, per Cowen J. Mills v. Muggins, 3 Devereux, 58.) In an action on a promissory note for specific articles, it is not a suficient plea, that defendant was ready at the time and place to deliver, &c. ; readiness does not amount to a tender. But if there has been tender, it need not be pleaded with an uncore prist; for tender of specific articles, though the creditor be not present, discharges the debt. (Barney v. Bliss, 1 Chip. 407, per Skinner, C. J.) But in order to make a tender in property legal, the articles ought to be specifically pointed out, and their identity clearly ascertained, so that the plaintiff might be able to prove them, should he be driven to an action for them. (Bates v. Bates, Walker, 401.) In New Hampshire however it seems a tender of specific articles, according to contract, transfers no property, if the tender has been refused, even when it discharges the contract. (Weld v. Hadley, 1 N. Hamp. 295.)

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