Torrey v. Balen Agricultural & Mining Co.

McAdam, Ch. J. The plaintiff sailed from New York on the first of March, 1884, on the steamer Acapulco, and returned to New York on the fourth of April, 1884. He was absent thirty-five days. It took about fourteen days to reach the property, and about the same number of days to return, making twenty-eight days of necessary traveling. This leaves seven days upon the 24,711 acres. The plaintiff in his evidence says, “ I have not claimed that I was on the actual ground over one week.” How much surveying, examining, prospecting, &c., the plaintiff did in this brief time may well be inferred from his evidence. He says, “ I found it an almost inac [390] cessible country, only possible to get from one part to another by canoe up these narrow rivers, and a few trails —a trail in that country being made by a man going ahead of you with a machette or long knife, cutting down the palm trees and tangled growth which grows up there in. six months so that you can’t get through it without having to repeat the operation.” At another part of the testimony the plaintiff was asked the follov ing : “ Q. From the examination you made, are you able to swear that there are no minerals, gold or silver, on the land of the company in Columbia, which you went to examine,, other than that you have stated in your report?” “A. Ho, sir ; because it would be contradicting my report which I gave them. My report states that, to the best of my knowledge and belief, it is not a promising outlook ; gold might be discovered there in future years.” While the outlook might not be promising to the experienced eye of the expert, the contract evidently contemplated something more than this; for it requires the plaintiff “ to make as thorough and minuto examination and survey of the property as may be necessary for the purpose of discovering and locating such mines, veins and deposits of minerals as may exist thereon.” This required work, search, investigation, examination, prospecting, and the like, and the seven days spent upon the 24,711 acres was hardly sufficient time todo this conscientiously. The plaintiff evidently satisfied himself that the “ outlook was not promisingbut he did not perform his contract. The task was evidently more than he had contemplated when he undertook .the employment. The key-note of the trouble is expressed by the plaintiff in these words : “ I wrote letters explaining the condition, and sent a telegram, stating that from all the knowledge I had obtained up to that point the property was far more difficult to examine than I anticipated, and I telegraphed [391] for $500 additional money, so I might clo something for the company, and not come bach and make an utter failure.” The company was under no obligation to send the additional $500, and the plaintiff, no doubt discouraged at the unpromising condition of affairs, returned, and made the best report he could under the circumstances. The plaintiff is no doubt a competent assayer and mining expert, and intended to do all he undertook, but, unfortunately agreed to do what he could not with the limited assistance and time he allowed himself to do the work. He testified in a fair and candid manner, and I have no reflections whatever to cast upon him or his testimony. I find, however, as matter of fact, that the contract has has not been performed on his part, and this finding virtually disposes of the entire case. Story, in his work on Contracts (§ 968) says : “ The express stipulations of a contract must be exactly performed, and [even] a substantial performance is not sufficient, where the time or the exp. ess manner and odetails agreed upon are essential, and are not complied with.’’ If a party covenants to do an act, he is bound to perform what he undertakes ; the difficulty or improbability of accomplishing the undertaking will not excuse him. Nothing short of showing that the thing to be done cannot be done will relieve him from his obligation (Beebe v. Johnson, 19 Wend. 500). That the thing undertaken can bp done, is practically conceded—an advance of $500 more money would have assisted in doing more than was done. This the plaintiff in effect admitted when he called for the additional $500, to prevent failure. For these reasons, and without going into further details, which my finding has made unnecessary, there must.be judgment for the defendant, with costs, and two per cent, allowance. Synopsis of Defendant’s Brief. Contract being entire, plaintiff must show substantial performance of every material part of the contract, according to its terms [392] (50 N. Y. 145; 56 Id. 665; 62 Id. 264; 80 Id. 312; 68 Id. 507; 75 Id. 16-6; 73 Id. 406; 85 Id. 407; 1 Week. Dig. 390). The defects must not pervade the whole, or be so essential that the object which the parties intended is not accomplished (62 N. Y. 264). Willful failure to perform prevents recovery (61 N. Y. 645). What was said by the parties at the time of making the written contract is incompetent (85 N. Y. 412; 102 Id 513). A promise to pay cannot be implied outside of the writing (75 N. Y. 74; 2 Cliff., 590). There can be no recovery on quantum meruit (68 N. Y. 23; 3 Id 420; 22 Id. 162; 20 Id. 312; 93 Id. 39, 44; 2 Den. 110). If there be a written contract, it must be produced (24 Wend. 60, 65; 7 Bosw. 418). When written contract appears, the parol evidence must be stricken out (Abb. Trial Ev. 62; 24 Pa. St. 314, 317; 102 N. Y. 513). The meaning of a contract is to be gathered from a consideration of all of its provisions, and the inferences naturally derivable therefrom as to thé intent and object of the parties making it, and the results intended to be accomplished by its performance (102 N. Y. 215). It is a familiar rule that parol proof of extrinsic circumstances may be given to apply a description to its subject matter (102 N. Y. 215; citing 21 Wend. 651; 16 N. Y. 267; 47 Id. 221; 2 Paige, 11). Evidence of custom inadmissible to interpret contract (102 N. Y. 652). Amendment on trial cannot be allowed (102 JY. Y. 513).