Dana v. Mason

The opinion of the Court was delivered by Baylies, J.. If the plaintiff sued before his cause of action had accrued, the judgement of the county court must be affirmed. But il the plaintiff's cause of action had accrued, when he commenced his action, the judgement of the county court must be reversed, and the plaintiff recover the sum awarded. The law is well settled, that where goods, charged on book, are sold on a special contract, for the seller to wait for his pay a certain time, he cannot sustain an action on book account, until the time of credit agreed upon is past; for until then, the seller’s cause of action does not accrue. The report of the auditor states, that the defendant, before he took up the goods, “ had contracted to build by job the whole, or a part,of the parsonage house, in Woodstock, and, by agreement with the building committee, was to finish-the job in the fall of 1828, and was to receive his pay for the job, when it was done ; the said committee to furnish materials.” And the report also states, that the defendant in the fall of 382S, [370] finished said job, excepting the window blinds, for which the committee did not seasonably provide the materials : these were finished in-May, 1829'. If the building committee prevented the defendant performing his contract, by their negligence in finding materials for the window blinds, the defendant was entitled to his money for the job in the fall of 1828, the same as though the job had been completed. The report also states, “ that on or near the last day of July, 1-828, and before any goods were by him taken, the defendant toltf the plaintiff, that he had made the building contract aforesaid,, and1 informed" him particularly of the terms of the same, as above1 stated ; and thereupon, at the same time said to the plaintiff, tbat-lte should want to get goods from time to time at plaintiff’s store, and should want to- have plaintiff wait for his pay for the goods until the defendant should get said job done, and get his pay for it j to which proposition the plaintiff assented.” It is also slated, that all the goods charged in plaintiff’s account were taken up on this contract. How are we to understand this contract? Was the plaintiff to lose his goods, if the defendant did not complete his. job, or receive his pay therefor, according to his contract with the-building committee ? The plaintiff’s cause of action for the goods, which, he sold and delivered to the defendant, did not depend on such a contingency ; but- ft was ¡-he understanding that the defendant would do his job, and receive his pay, in tho-falfoC 1828, apd, would then pay the plaintiff for his goods.. The plaintiff commenced his action on the 6th day of'February,,. 1830 ; that is, one year and two months after the defendant was entitled' to receive his money for doing the job. The report’s stating “ that defendant did not make a settlement of his said building contract uritil November, 1830,” without showing any cause for this delay, is not sufficient excuse for the defendant’s not paying for the goods. There can be no doubt the plaintiff had a cause of action on-the sixth of February, 1830, when he commenced his suit; and the judgement of the county court must be reversed, and judgement be rendered for. the plaintiff to recover the sum reported,, and his costs-..