Woodworth v. McBride

By the Court, Sutherland, J. I am inclined to think that it was the intention of the parties that the defendant should not be responsible for any delay or failure in delivering the staves, either in the fall of 1824, or the spring of 1825 5 if such failure was occasioned by the dangers of the canal, although the considerations urged by the counsel for the plaintiff to shew that the exception was intended to apply only to the dangers of the fall or winter navigation, are not without some force. But the defendant, if he could not perform his contract in the fall, was bound to complete it the ensuing spring. Accor [229] ding to the fair construction of his rejoinder, however, he alleges that he was prevented from delivering the residue of the staves in December, 1824, by the dangers of the canal, but gives no excuse for not delivering them the ensuing spring. He says that in December, 1824, he delivered 8500 of the staves, according to contract, and would have delivered the residue, (that is at the same time,) but for the dangers of the canal. This is no answer to the replication, nor does it shew a valid excuse for the failure of performance on the part of the plaintiff The rejoinder is also defective in form, in not stating particularly, what the dangers of the canal navigation were, which prevented performance on the part of the defendant. It was a fact resting exclusively in his knowledge, of which he was bound to apprise the plaintiff, in order that he might be able to disprove the allegation, or produce evidence In relation to it upon the trial. In these respects the rejoinder was defective. I am inclined to think, that testing it by the liberal rules which are always applied to the pleadings in justices’ courts, it may be considered a substantial answer in all other respects to all the breaches assigned. But the plaintiff should have had judgment on the demurrer in the court below, with leave to the defendant to amend his rejoinder. Judgment reversed.