Sext v. Geise & Co.

Bleckley, Chief Justice. Under the evidence in the record, the main question was whether there was a valid debt as between the parties litigant. The charge of the court, carved up as in the motion for a new trial, may contain inaccuracies, but the whole charge taken together is free from substantial error, though it embraces some matter which we deem irrelevant. If the supply of lumber was about to stop, and the owner of the building procured its continuance by promising to pay for it, his undertaking was not collateral but original, and he is bound. We rather think the evidence makes this case, and we should be satisfied with the verdict were it not that, according the evidence, the time for payment was not on delivery of the lumber, but when the job was finished; and it was not shown either that the job was finished or that a reasonable time for that purpose had elapsed before the suit was brought. The court should have instructed the jury as requested, that “ If Sext promised to pay when the house was finished, then the burden of proof is on the plaintiffs to show that it was finished at the time of filing the suit.” The equivalent of this would have been to show that a reasonable time had elapsed for completion to have taken place, but there was no' evidence of the one fact or the other. There is no reason why the parties should not abide by their contract as to the time of payment as well as in other respects, and if the account was mature when the action was brought, there is no reason why the plaintiffs below should not have made it so appear. Both the court and the jury seem to have disregarded this feature of the testimony, for the court instructed the jury that the account would bear interest from the date of the last item, (October 9th, 1883,) and the verdict so provides. There is no hint in the evidence that [704] the account was due on the 9th of October. On the contrary, the agent of the plaintiffs testified that the bulk of the lumber was delivered after the written order from McManaman was procured, and that order bears date on the 9 th of October. The action was commenced December 22, 1883. Let the case be tried over. Judgment reversed.