Farwell v. Tillson

• Decision Date: 03 June 1884
• Citation: 76 Me. 227
• Parties: JOSEPH FARWELL and another v. DAVIS TILLSON.
• Court: Maine Supreme Court

76 Me. 227

JOSEPH FARWELL and another v. DAVIS TILLSON.

Supreme Judicial Court of Maine.

June 3, 1884

ON EXCEPTIONS and motion to set aside the verdict, by the plaintiffs.

Assumpsit to recover a balance due from defendant as owner of a cargo on a general average, to the plaintiffs as owners of schooner Joseph Farwell, also for amount of loss sustained by the plaintiffs by the failure and refusal of the defendant to permit the plaintiffs to carry from Hurricane Island to Baltimore, ten thousand tons of granite, according to contract stated in the opinion; loss alleged, fifteen thousand dollars.

The plea was the general issue and brief statement setting up among other defences, the statute of frauds.

The contract between the defendant and the government, referred to in the opinion, was dated April 22, 1873, and its provisions, material to this case, were as follows:

" The parties of the second part covenant and agree to and with the party of the first part to furnish from their quarry at Hurricane Island, state of Maine, and deliver at the site of the aforesaid building [United States Custom House to be built at St. Louis,] as much gray granite as may be required by the plans to be adopted by the treasury department for said building provided, that should such gray granite be found unsuitable for the moulded and enriched work of the superstructure of said building, above the first story, the parties of the second part agree to furnish granite therefor from other quarries subject to the approval of parties of the first part.

And the parties of the second part further agree to furnish and deliver said granite at such times and in such quantities as may from time to time be ordered by the party of the first part, and that the granite shall be of the best quality to be obtained from their quarry aforesaid, and of uniform color free from flaws, stains or discoloring matter and to the entire satisfaction of the party of the first part; …

And the parties of the second part further agree to furnish such number of men as may from time to time be deemed necessary by the party of the first part for the proper prosecution of the work, and provide such shops, sheds and other buildings as may be necessary for the performance of the work and for the accommodation of the workmen without cost to the government or compensation for their use, or for rent of the land on which they may be erected. And the said parties of the second part further agree to cut as well as furnish and deliver all granite herein contracted for, at such times as may be required by the said party of the first part, and in default thereof to forfeit and pay to the United States the sum of one hundred dollars ($100) per diem for each and every day thereafter, until the final completion of the same, which sum shall be deducted from any moneys which may be due them, and if that amount be not due them, then their bondsmen are to be held liable for any deficiency, to be recovered of them by suit, in the name of the United States. And the said parties of the second part further covenant and agree to and with the party of the first part, to lease and hereby do let and lease their quarry or quarries at Hurricane Island, Maine, with all and singular the tools, buildings, wharves and appurtenances thereunto pertaining unto the said party of the first part with full right, authority and power to enter upon, occupy and use the same, or procure therefrom any or all such stones as parties of the second part shall fail, omit or decline to furnish, and said lease shall continue in full, until the final completion of the delivery of the granite herein contracted for; it being understood and agreed that the object of this lease is to secure the party of the first part a sufficient and suitable supply of granite for said building from the quarry or quarries aforesaid, and that such entry or occupancy of the said premises shall not be made by the party of the first part, unless the parties of the second part shall be in default, and unless the party of the first part shall give to the parties of the second part eight (8) days' notice of their intention so to do … and in case of said default or failure to comply with the conditions of this contract at the end of said eight (8) days the party of the first part shall enter into full and complete possession." …

The verdict was for plaintiffs in the sum of three hundred sixty-one dollars and thirteen cents, and the jury found specially that there was no binding contract between the plaintiffs and the defendant for carrying the granite for the St. Louis building from Hurricane Island to Baltimore.

Other material facts stated in the opinion.

A. P. Gould, for the plaintiffs.

I. The terms of the contract, so far as they are put in issue by the pleadings, are undisputed, and its construction was, therefore, for the court. Atwood v. Clark, 2 Me. 249; Homans v. Lambard, 21 Me. 308; 2 Parsons, Contr. 4, 68; Todd v. Whitney, 27 Me. 480; Short v. Woodward, 13 Gray 86.

There is no difference in this respect between a written and an oral contract, when the terms of the oral contract are clearly proved and undisputed. Homans v. Lambard, supra; Short v. Woodward, 13 Gray 86.

The declaration complains only of a breach of that part of the contract which is wholly written in the proposal, to wit: The refusal to permit the plaintiffs to freight the stone to Baltimore. There is no complaint of a breach of the clause, " and all other conditions as to water and detention, are as you have talked to us." This related to terminal facilities and unreasonable detention of vessels and nothing else. No other talk was referred to in the proposal, and it was error to admit testimony of other conversations and to treat them as a part of the contract.

The terms being in writing and undisputed, so far as they related to the issue, the meaning and construction of the contract were for the court.

It was error to instruct the jury that it was for them to consider the testimony of defendant as to conversation with the plaintiffs relating to the length of time for the performance of his contract with the government, or the contract of the Baltimore and Ohio railroad, and that testimony was erroneously admitted. It was adding terms to the plaintiffs' contract, without their consent. If the court had put a construction on so much of the offer and contract, as was in issue by the pleadings, no such addition to the contract would have been made.

II. It does not appear by the terms of this contract that it could not have been performed within one year; and it is not, therefore, within the statute of frauds. R. S., c. 111, § 1, p. 5; Linscott v. McIntire, 15 Me. 201; Duffy v. Patten, 74 Me. 396; Herrin v. Butters, 20 Me. 119; Fenton v. Embler, 3 Burr. 1278; Boydell v. Drummond, 11 East, 142; Walker v. Johnson, 96 U.S. 424; Russell v. Slade, 12 Conn. 455; Clark v. Pendleton, 20 Conn. 495; McLees v. Hale, 10 Wend. 426; Moore v. Fox, 10 Johns. 244; Dresser v. Dresser, 35 Barb. 573; Gault v. Brown, 48 N.H. 190; Peters v. Westborough, 19 Pick. 364; Anon. 1 Salk. 280 Peter v. Compton, Skinner, 355; 2 Kent's Com. (12 ed.) 510, note c.; Abbott's Trial, Ev. 363.

In Hearne v. Chadbourne, 65 Me. 302, there was a departure from the principle that it must appear by the terms of the contract that it was not to be performed within a year, but to the extent only, of permitting it to be shown by the acts of the parties when the time for the performance of the contract was to commence, the contract being silent on this point. If Hearne v. Chadbourne is good law, and is to be considered as deciding that evidence other than the terms of the contract, is to be received, to enable the defendant to set up the statute of frauds, then Linscott v. McIntire, supra, and Herrin v. Butters, supra, are not good law. Those cases have not been overruled but are cited in Duffy v. Patten, supra, as still law.

Reference in the plaintiffs' written proposal to the defendant's " St. Louis contract," was simply for the purpose of showing for what building they proposed to carry the stone, and it did not make that whole contract a part of their proposition.

III. But there was nothing upon the face of the St. Louis contract to show that it was not to be performed within a year; on the contrary it ppears by its stipulations that the government might have required Tillson to furnish all the stone therein contracted for within a year.

If the plaintiffs were bound to look into the defendant's contract with the government, they could not have discovered by it, that the stone were not all to be carried in one year. No quantity of stone is mentioned in that contract. The size of the building is not given from which an estimate of quantity might be made. The stipulation was " as much gray granite as may be required by the plans to be adopted by the treasury department for said building."

It was not certain that all the granite should come from Hurricane Island. In reading the contract the plaintiffs would have perceived that the major part of the stone might be required from other places. In that contingency it would be absurd to say that Tillson could not, with a sufficient force, obtain and ship, at least to Baltimore, all the granite in one year, He was not restricted by the terms of his contract.

If upon a contingency which might happen to shorten the time of performance, it does not appear that the contract could not have been performed within a year, it is not within the statute. Browne, Stat. of Fraud, § § 275, 278 a, 279, 280; Gault v. Brown, supra; Blanding v. Sargent, 33 N.H. 239; Artcher v. Zeh, 5 Hill 200; Lyon v. King, 11 Met. 411; Lapham v. Whipple, 8 Met. 59; Dresser v....