Blackburn v. Reilly

• Decision Date: 30 June 1885
• Citation: 1 A. 27,47 N.J.L. 290
• Parties: BLACKBURN v. REILLY.
• Court: New Jersey Supreme Court

1 A. 27

47 N.J.L. 290

BLACKBURN

v. REILLY.

COURT OF ERRORS AND APPEALS OF NEW JERSEY.

June Term, 1885.

In case. In error to the Essex circuit court.

Blackburn, the plaintiff below, a Virginia dealer in bark, entered into a contract on May 13, 1882, to sell to the defendant below, Reilly, a Newark tanner, for use in his business, 52 car-loads of bark at the price of $18 per ton, to be delivered at the rate of one car-load per week until the whole should have been delivered. Under this contract five car-loads were actually delivered. This was stored by Reilly in a loft over his tannery with other bark. It was all paid for at the contract price by July 3, 1882, but none of it was used until July 15th. Reilly claims that it was then found to be musty, lumpy, and unfit for the purpose for which it had been bought; and shortly after Reilly notified Blackburn not to send any more,—first by mail, alleging that he was overcrowded, and shortly afterwards in a personal interview, alleging its unmerchantable condition.

In January, 1883, and before the expiration of the year within which the bark was to have been delivered, Blackburn brought suit, setting forth the above contract and the breach of it. The defendant pleaded the general issue. Before trial, however, the parties came to an understanding, and made an agreement in writing, dated March 27, 1883, which was delivered on April 4, 1883. By its terms it was stipulated that the contract for the breach of which suit had been brought should be completed by the delivery by Blackburn of a sufficient number of car-loads of bark to make, with what had already been delivered, 52 car-loads, at the price of $17 per ton, payable on delivery of each car-load. This new agreement then went on to provide as follows: "(4) One car-load only shall be delivered during each week after shipments shall begin, and said shipments shall begin on the first day of April next, or within ten days thereafter." "(6) This suit shall not be discontinued or non pros'd until the final completion of this contract. The plaintiff shall then discontinue it without costs. But in case of a breach of this contract by said Reilly, the plaintiff may proceed in this suit by requiring the defendant to plead, and the suit shall proceed thereon to trial, and the damages to be recovered shall be measured by the original contract sued on. Said Reilly shall, on the execution hereof, pay the taxed costs of the plaintiff. It is understood that this suit is not settled unless the terms of this contract are faithfully carried out by said Reilly."

Blackburn did not deliver any bark within the 10 days stipulated, or subsequently. Reilly, on his part, tendered the costs on April 21st, and gave notice that he would not receive any bark under the contract because of the lapse of time. The tender was refused, and Blackburn insisted on proceeding in the original suit. Reilly then pleaded puis darrein continuance, two additional pleas setting forth the new agreement, Blackburn's failure to deliver under it, and Reilly's tender of costs, to which Blackburn demurred, and judgment was given in favor of the demurrant. The case then went to trial on the general issue as originally pleaded; the damages claimed being damages for the breach of the first agreement. The defense interposed was that the delivery of five loads of unmerchantable bark justified the defendant in refusing to receive any more bark under the contract. This defense was overruled by the court, and the plaintiff had judgment. Exceptions being sealed for the defendant, he brought this writ of error.

Mr. Coult, for plaintiff.

Mr. Stevens, for defendant.

DIXON, J. The first question for decision on this writ of error is whether the pleas puis darrein continuance were good. They were pleaded in bar of the action, and a prime requisite of such pleas is that they shall allege facts which form a conclusive answer to the action, and entitle the defendant to a final judgment in the cause. 1 Chit. Pl. 525. The express terms of the contract relied on in these pleas show that nothing growing out of and dependent upon that argument could have this broad effect in favor of the defendant. According to its provisions, the defendant was forthwith to pay the costs of this suit. In case he failed to comply with its stipulations, the suit was to proceed as if the contract had not been made; and if he fully performed it, the plaintiff was to discontinue the suit without costs. So that the effect upon the pending litigation which...