Bryan v. Spurgin
| Decision Date | 30 September 1857 |
| Citation | 37 Tenn. 681 |
| Parties | J. J. BRYAN v. JOSEPH SPURGIN. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM SULLIVAN.
This action of assumpsit is from the circuit court of Sullivan. At the March Term, 1858, before Judge Patterson, verdict and judgment were for the defendant. The plaintiff appealed in error.
L. C. & M. T. Haynes and Deadrick, for the plaintiff. J. B. Heiskell and T. A. R. Nelson, for the defendant.
This was an action of assumpsit to recover damages for the non-delivery of part of a quantity of flour, bargained and sold by the defendant to the plaintiff. The plaintiff failed to recover, under the instructions of the court, and he has prosecuted an appeal in error to this court.
The contract was in writing, and signed by the parties. The questions for our determination, arise upon the following clause of the agreement.
“The said flour is to be delivered in Chattanooga; one hundred barrels, or more, on the first tide, and the balance as soon as convenient, between now and the first of June.”
The contract bears date the 22d of November, 1854. Part of the flour--200 barrels, perhaps--was delivered in March, 1854; the remainder of the flour was never delivered.
To a correct understanding of the questions discussed, in the argument here, it is necessary to state, that the defendant, Spurgin, resided on the Holston river, in Sullivan county, Tennessee; and the plaintiff resided on the Tennessee river, at Chattanooga, in the same state. And that, in Sullivan county, the customary mode of transporting flour, to market, by persons engaged in the trade, at the date of the contract, was by the river, in flat boats, and that the Holston river, at its ordinary stages, is not navigable, and, consequently, that flour boats, cannot descend without a rise, or freshet, in the river.
The ground of defence to the action, in substance, is, that the defendant was hindered from delivering the remainder of the flour, for want of a sufficient rise in the river to admit the safe passage of boats, within the period limited by the contract.
For the plaintiff, it is insisted, that if the fact were admitted to be so, it would constitute no defence. That as the written contract of the parties specifies no particular mode of delivery, and as the undertaking to deliver, by a given day, is absolute and unconditional, the matters relied on by the defendant, form no excuse, in law, for the non-performance of his contract. And that the evidence of the custom or usage of trade, in such cases, and also of the want of a rise in the river to admit the descent of flour boats, was irrelevant, and ought to have been rejected by the court.
His honor, the circuit judge, was of opinion, that evidence of the local custom, in such cases, was admissible; and that the contract must be construed with reference to such custom. His honor was likewise of opinion, that the want of a freshet, sufficient to admit the safe passage of flour boats down the Holston and Tennessee rivers, would be a valid excuse for the non-delivery of the flour by the defendant, within the time specified in the contract, and would defeat the plaintiff's right of recovery.
Upon the first proposition, we concur in opinion with the circuit judge.
It seems to be well established, that evidence of a custom, or usage of trade, is admissible, either to interpret the meaning of the language of the contract, or to ascertain the nature...
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Earle v. Illinois Cent. R. Co., 3.
...of the Law of Contracts, Vol. 1, sections 245, 247. Our own cases support the rule as stated by the text writers. Bryan v. Spurgin, 5 Sneed 681, 37 Tenn. 681; Charles v. Carter, 96 Tenn. 607, 614, 36 S.W. 396. A lucid discussion of this principle is to be found in Walls v. Bailey, 49 N.Y. 4......
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Earle v. Illinois Cent. R. Co.
...of the Law of Contracts, Vol. 1, sections 245, 247. Our own cases support the rule as stated by the text writers. Bryan v. Spurgin, 5 Sneed 681, 37 Tenn. 681; Charles v. Carter, 96 Tenn. 607, 614, 36 S.W. 396. lucid discussion of this principle is to be found in Walls v. Bailey, 49 N.Y. 464......
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Clinchfield Stone Co. v. Stone
...therefrom because of unforeseen difficulties, unusual or unexpected expense, or because it is unprofitable or impracticable. Bryan v. Spurgin, 37 Tenn. 681; 17 C.J.S., Contracts, Sec. 459, p. 946; 12 Am.Jur. Sec. 362, p. It is an established rule that a court of equity has the power to enfo......
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Hinchman v. City Water Co.
...do it." In the latter class of cases impossibility of performance is not a defense. Restatement of Contracts, § 455. In Bryan v. Spurgeon, 37 Tenn. 681, 5 Sneed 681, court thought that the contingency should have been foreseen. Officer v. Sims, 49 Tenn. 501, 2 Heisk. 501, is irrelevant. An ......