Attwood v. Clark

Mellen C. J. at the succeeding November term delivered the opinion of the Court. The statement of a few plain propositions and principles will simplify the cause and lead to an easy decision. If the contract on which the original action is founded had been in writing, and no time had been mentioned within which the account or memorandum of broken ware was to have been furnished by Clark to Altwood, the law would have supplied what the parties had omitted ; or rather would have decided when the memorandum should have been furnished; i. e. in a reasonable time. In such a case the question of time would be purely a matter of legal construction. We need not cite authorities in support of this position. The contract on which the action is founded is a parol contract ; — and it appears on the exceptions that the only witness by whom it was proved, and by whom all the terms were distinctly stated, was introduced by the original plaintiff; and he testified also that nothing was said “ about the time when the “ plaintiff should furnish the defendant with the account, min- “ ute or memorandum aforesaid.” It then appears, that as to 'this particular, there was no contract between the parties, made and expressed by them. The contract thus made and undisputed as to its terms, stands on the same foundation, in point of construction, as though it had been reduced to writing; and the law must complete it in the same manner, by deciding as to the time within which the memorandum of broken ware was to have been furnishedviz. it was to have been within a reasonable time. What is a reasonable time,'within which an act is to be per-\ formed, when a contract is silent on the subject, is a question of | law. [254] The Judge instructed the jury that, if they believed it was no part of the contract that notice should be given within a reasonable time, they might return a verdict for the plaintiff. He also instructed the jury that 'a reasonable time had elapsed before the demand of payment. Now; as it appears by the exceptions that no time was mentioned in the contract, within which the memorandum was to be furnished, the lam fixed the time, as we have before stated, viz. a reasonable time ; and such time had elapsed before demand made, according to the Judge’s opinion; — there was, therefore, nothing as to this point for the jury to decide ; the contract as proved was not denied ; and no fact existed from which they would have had a right to presume that the time for furnishing the memorandum did form a part of the contract. Such then being the contract, the question as to reasonable time being a question of construction for the Court as matter of law; as in cases of demand and notice in actions against indorsers of promissory notes; and such being the opinion of the Judge as to reasonable time ; we think his instructions to the jury on this point were incorrect, because he informed them that they might find a verdict for the plaintiff if they believed— what they could not help believing and were not at liberty to disbelieve upon the evidence — that it was not apart of the contract that notice should be given within a reasonable or convenient time. The very circumstance thus mentioned shows that the jury had nothing to decide on this point. If reasonable time did form a part of the contract, then the Judge stated that notice was not given zuithin such reasonable time. If it did not form a part of the contract, the jury had no concern with the question. It was the business of the Court exclusively, to give a legal construction to the contract on that head, and thus complete the contract by annexing what the law implied, viz. that she memorandum should have been furnished and the demand made on Attwood within a reasonable time. Had he done this, tim principle of law which he clearly stated to the jury, would have led him further to instruct them that on the facts disclosed, 0 ,v.J on legal principles, the action was not maintainable. On 1 hr. ground, we think the judgment is erroneous; and being : ruisfted on this point, it is not necessary for us to pay any par [255] ticular attention to others, or to the arguments which have been urged relating to them. The inquiry whether there was a waiver of objections on account of the delay to furnish the memorandum, seems not to have been submitted to the jury’s consideration. The judgment is reversed ; and a new trial may be had at the bar of this Court.