Boyett v. . Braswell

Reads, J. The plaintiff cannot recover for an alleged breach of contract on the part of the defendant, without showing that he, the plaintiff, had complied with his part of the contract; or without showing that he had been relieved from complying by the conduct of the defendant. Here, then, is no pretense that the plaintiff had complied, and the only ques *264 tion is, whether he had been relieved from, complying by the conduct of the defendant. The plaintiff sajrs that one Brantly, to whom the defendant had sold his saw mill, and who was to pay defendant for it in lumber, promised the plaintiff that if "Vanhook, who was the plaintiff's agent to deliver timber in compliance with plaintiff’s contract with the defendant, should be “ remiss” in delivering the timber he, Brantly, would notify the plaintiff of it, so that the plaintiff might himself deliver it:, and that Brantly never gave him any such notice. It is clear that nothing which Brantly said or did can affect the defendant, unless he was the defendant’s agent, to say or do that thing. And here there is no evidence that Brantly ivas authorized to say or do anything to relieve the plaintiff’ from his undertaking to deliver 200,000 feet of timber or saw logs, ac the mill. The plaintiff says, that the fact that Brantly was in possession of the saw mill and was to receive and saw the logs, is some evidence from which the jury might infer that Brantly was the agent of the defendant. Grant that to be so, yet, for what purpose was be the defendant’s agent? Agent to receive the timber. And then, bis Honor charged the jury, that if Brantly was the defendant’s agent to receive the timber, then he was bis agent to make the promise to notify the plaintiff of the remissness of Yanderhook, the plaintiff’s agent; and that a breach of that promise by Brantly relieved the plaintiff from his contract with the defendant to deliver the timber, and authorized the plaintiff to recover of the defendant, just as if he had delivered it. The proposition cannot be maintained, that an agency to receive is evidence of an agency to dispense with the delivery, lienee, there is no direct evidence of any agency at all ; and the plaintiff only insists that the fact that Brantly was in possession of the mill when the logs were to be delivered, is some evidence of liis agency to receive. Grant that to beso. Then if the plaintiff had shown that lie had carried the logs and *265 offered to deliver thorn, and the agent would not receive them, he might with force, have insisted that he had complied with his contract to deliver. The plaintiff seeks to give merits to his case by the consideration that if he had had notice of the default of his agent, Yanhook, he would have complied with the contract by delivering the logs himself. But he fails upon the merits; for although JBrantly did not notify him, yet Yanhook did ; and that was better. The plaintiff failed to furnish Yanhook with food for his oxen, as he had agreed to do, and therefore Yan-hook could not haul the logs, and notified the plaintiff that he 4' was out of it.” Our conclusion is that his Honor ought to have charged the jury that there was no evidence that the plaintiff had complied with his part of the contract, or been relieved from complying, and thereforo the plaintiff' was not entitled to recover. There is error. Peb Cckiam. Venire de novo.