Emack v. Hughes

• Decision Date: 21 August 1902
• Citation: 52 A. 1061,74 Vt. 382
• Court: Vermont Supreme Court
• Parties: EMACK v. HUGHES.

52 A. 1061

74 Vt. 382

EMACK

v. HUGHES.

Supreme Court of Vermont. Rutland.

Aug. 21, 1902.

Exceptions from Rutland county court; Munson, Judge.

Action by John D. Emack against William H. Hughes. From a judgment for plaintiff, defendant brings exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, START, WATSON, STAFFORD, and HASELTON, JJ.

Joel C. Baker, for plaintiff.

Butler & Moloney, for defendant.

STAFFORD, J. The plaintiff deals in slate in Philadelphia. The defendant manufactures the same at Granville, N. Y. The parties have dealt with each other for some time. The present action is for failing to deliver slate according to contract. In a letter of April 29, 1899, the defendant offered to supply the plaintiff, after June, not to exceed 1,000 squares per month, at stated prices; and two days later the plaintiff, by letter, accepted the offer to the amount of 1,000 squares per month for the six months beginning with July. Delivery was to be made on the cars at Granville. These two letters, which make up the contract so far as it was put in words, do not say when payment should be made, nor how. The plaintiff claimed that the only contract in this respect was the one the law would import,—cash on delivery,—while the defendant claimed that the previous course of dealing was understood to govern, whereby the plaintiff was to send his notes about the 15th of each month, to cover the shipments of the succeeding month; and the jury were left to say whether there was such an established course of dealing, and whether it formed a part of the present contract. The jury were also told that 1,000 squares were due each month, if orders for that amount were seasonably forwarded, and that, in view of the evidence, they were to say whether there was a well-known usage of trade that such orders should cover a reasonable range of sizes, and, if so, were told that such usage was a part of the contract They were also told that the defendant was not responsible for any delay caused by the failure of the railroad to furnish cars. The main question was, which party broke the contract? The plaintiff claimed that it was the defendant who first broke it by failing to deliver the 1,000 squares due in July. Although the defendant did deliver more than 1,000 squares in July, a part were to be applied on a previous and separate contract between the parties,, leaving less than 1,000 squares to be applied on the contract in question; but the defendant claimed that the plaintiff waived delivery of the full amount due in July under the present contract, in order that the earlier contract might be filled, and that for that reason he was not in default, but that the plaintiff was the first to break the contract by failing to advance his notes August 15th, as well as by taking an unwarranted position in one of his letters,—that of August 7th. The plaintiff obtained a verdict, and the case is here on exceptions by the defendant which we shall take up in the order in which they are presented by his brief.

1. He excepted to the supposed failure to charge that he could not be held responsible for not delivering the contract quantity if the plaintiff had not seasonably furnished him with orders therefor; his evidence tending to show the plaintiff did not keep him supplied with orders. We think there was no real failure upon this point. The principle contended for was recognized throughout the charge. In stating at the beginning that the contract calls for 1,000 squares each month, the court adds, "if orders for that amount are seasonably forwarded." Twice afterwards reference is made to the same condition,—once in saying that the defendant's failure to deliver constituted a breach of the contract, unless there had been a waiver, or "unless the defendant was excused from completing the delivery for some of the other reasons before stated"; and finally in the sentence, "This brings you back to the question, 'Was the defendant's failure to fill the plaintiff's orders a breach of the contract, or something for which he was excused, on the grounds before stated"?'" If the rule was not given more prominence, it was probably because the defendant was insisting more strenuously that the orders which were furnished did not cover a sufficient range, leading the court to deal more particularly with that claim, and because it was too obvious to need much comment that the plaintiff could not complain of not receiving what he had not asked for. We are satisfied that the jury could not have been in doubt upon this point.

2. He excepted to the supposed failure to comply with three special requests, and to the charge upon those subjects: (a) To tell the jury that the letter of August 7th was a demand which the plaintiff had no right to make. This letter, in its material part, was as follows: "If you don't ship my orders, to the exclusion of all others, until you have reimbursed me for the advances, I shall put the matter in the hands of my attorney in Vermont, and let him do the settling." It was evidently the plaintiff's answer to the defendant's claim that he could not supply all his customers. The court properly told the jury: "The defendant's inability to produce slate fast enough to meet the demands of his customers generally is no defense. The plaintiff was entitled to stand upon his contract, and insist that his orders should be filled." The plaintiff now Insists that the jury might have read the letter as a demand that the defendant should ship slate to the amount of the advancements immediately, and regardless of the usage that the advancements should cover the shipments of the succeeding month. But we are not advised of any evidence which could have justified that reading. The court properly told the jury that this letter, in itself, did not constitute a...