Raymond v. Fisher

• Decision Date: 31 August 1839
• Citation: 6 Mo. 29
• Parties: RAYMOND v. FISHER & HANSON.
• Court: Missouri Supreme Court

6 Mo. 29

RAYMOND

v.FISHER & HANSON.

Supreme Court of Missouri.

August Term, 1839.

KIRTLEY and TODD, for Plaintiff. The plaintiff contends that a covenant, although the time of performance has been enlarged by parol, must nevertheless be sued upon, and such agreement is a sufficient excuse for the non-performance of a condition precedent in the time specified in the covenant, if performance or excuse therefor is alleged under the parol agreement.

No principle is better settled than this, “A subsequent parol agreement, not contradicting the terms of the original contract but merely in continuance thereof, and in dispensation of the performance of its terms, as in prolongation of the time of execution, is good, even in the case of a contract reduced into writing under the statute of frauds.” Chitty on Con. 26; 3 T. R. 591; 4 Mo. R. 41, and 481; 1 Johns. Ch. 22; 2 Cond. R. 501; 4 Johns. R. 41, 481.

And it is contended for plaintiff that the same rule holds in contracts under seal, and that there is no legal ground of distinction. See 3 Johns. R. 528; 2 Call, 5, 125; 9 Pick. 298; 20 Johns. 462; 8 Johns. 391, and that in this case, the higher security for the contract being a covenant, the plaintiff is bound to sue thereon. 4 Cranch, 239; 3 Mo. R. 230-3.

ROLLINS and MILLER, for Defendants. The only question in this case is whether a completion and delivery on November 15, 1838, can be so substituted for a completion and delivery on November 1, 1838, as to enable the plaintiff to recover upon the article of agreement in the action of covenant. It is relied on, that this cannot be; and to sustain the position thus taken the following authorities are cited: 3 Starkie's Ev. 1002; Leslie v. Dr. L. Lorre cited in White v. Parkin, 12 East, 583; Caff v. Penn, 1 M. and S. 27; Davy v. Pendergrass, 2 Chit. R. 336; Thompson v. Brown, 7 Taunton, 656; Blanerhasset v. Pierson, 3 Len. 234, cited in 7 Taunton, 625; Heard v. Wadham, 1 East, 619; Littler v. Holland, 3 T. R. 590, and Brown v. Goodman in note to same case; Freeman v. Adams, 9 Johns. R. 115; Jewell v. Schroppel, 4 Cowen, 564,; Langworth and Clark v. Smith, 2 Wend. 587; Stutivell v. Miles, 2 Marsh. 425; Harrison v. Taylor, 3 Marshall, 154; Tidd's Practice, 756; Chitty, 116 and 96.

NAPTON, J.

This was an action of covenant, brought by Raymond against the defendants, Fisher & Hanson, in the Boone Circuit Court. The covenant declared on was executed by the parties on the 23rd of September, 1838, by which Raymond contracted to deliver, by the first day of November following, at Rocheport, two flat-boats, of specified description, and the defendants agreed to pay therefor, on delivery, three hundred and sixty dollars, and a penalty of three hundred dollars, in the shape of liquidated damages, was agreed to be paid by the failing party. The declaration alleges that, after the date of the covenant so made, on the 10th of October following, a parol agreement was made between the parties, that the time for the delivery of the boats should be extended until the 15th day of November following; that in pursuance of said agreement, plaintiff completed and delivered one of the boats made in pursuance of the plan in the covenant, and that defendants accepted the same; and that on the 14th day of November, before the time agreed on by parol expired, said defendants hindered the plaintiff from completing and delivering the other boat, by declaring they would not receive the other boat, &c., The breaches assigned are for the penalty and the price of the boat. To this declaration the defendants demurred generally, and the Circuit Court sustained the demurrer.

The only question is, whether an action of covenant can be sustained on a covenant modified by a subsequent parol agreement. It must be admitted, that the question is not without its difficulties, whether viewed as one of mere precedent, or as involving the very rights of the parties. The courts of New York, especially, have so connected their opinions in relation to the rights of the parties to contracts, some of which this court, in the case of Helm v. Wilson, 4 Mo. R. 45, have solemnly disclaimed, with their adjudications as to the remedies for the establishment of those rights, that it may not be very easy to extract any general and fixed rule of practice from the cases determined by that court.^(a) I apprehend, however, that notwithstanding a conflict of decisions may be discovered, it may be safely affirmed that the question arising on this demurrer is merely a question as to the form of action. The law must be regarded as settled, that a sealed contract may be modified as to the time of performance by a subsequent parol agreement. Colgan v. Sharp, 4 Mo. R. 41, 481; 2 Cond. R. 581.

This court has also decided, that where there is a special contract, and the plaintiff seeks to recover the value of his work done in accordance with such contract, he must declare on the special contract, and if his entire completion of the work in accordance with the terms of the contract has been prevented by the acts of the other party, he may allege such prevention as an excuse for non-performance. Clendennin v. Paulsel, 3 Mo. R. 320; Crump v. Mead, 3 Mo. R. 233; Helm v. Wilson, 4 Mo. R. 45. In the two first cases, there were covenants between the parties, and the court declared that the plaintiff must recover on the covenant; but I do not understand the court to intimate that if the covenants have been varied by parol agreement, they can still declare in covenant, though it may be well inferred that they must declare specially. The question, as I take it, is therefore still open so far as the decisions of this court are concerned, whether a sealed contract can be declared on in covenant, with an averment that by a subsequent parol agreement the time of performance was enlarged.

It is incontrovertably settled, that where a covenant has been modified by a subsequent parol contract for enlarging the time of performance, and the plaintiff declares on the covenant, without any averment of such subsequent agreement by parol to dispense with the time, he cannot recover. Littler v. Holland, 3 T. R. 590; Phillips v. Butler, 8 Johns. R. 392; Freeman v. Adams, 9 Johns. 115; Stetville v. Miles, 2 Marsh. 425; Harrison v. Taylor, 3 Marsh. 154. The leading case on this subject is the case in Dunford and East, of Littler against Holland. The plaintiff had covenanted to build two houses for £500 by a certain day, and in an action of covenant for money, averred that the houses were built in the time; to which defendant pleaded, that the houses were not built in the time. Plaintiff proved on the trial, that the parties had, by a parol agreement subsequent to the date of the articles, enlarged the time, and that the whole work was finished before the expiration of the enlarged time. Lord Kenyon said, “This point is so clear, that I am not inclined to grant a rule to show cause. The declaration charges that the parties had stipulated by deed to perform a specific thing on a certain day; then if the plaintiff, who sues on contract, be not bound to prove it as laid, the defendant has no notice of that which he is called on to answer.”^(a)

This brings us to the question, whether if the plaintiff avers in his declaration the existence of the parol agreement as an excuse for the non-performance of his covenant within the time, he can then be allowed to recover. If Lord Kenyon put the decision in Littler against Holland on the true ground, that of surprise, then it would seem very clear, that where the proper averments were introduced, that objection would be obviated and the action sustainable. But I...