Blish v. Granger

The opinion of the court was pronounced by Williams, Ch. J. — The auditors, having the testimony of both the plaintiffs and defendant before them, have found that the plaintiffs sold and delivered to the defendant a certain quantity of timber at a stipulated price, and there is no doubt that the parties were competent to testify to the sale, delivery and price. In every action on book, where goods sold, or services' performed, are the subjects of the charge, the delivery and the price constitute the ground of the claim ; and to exclude the party from testifying to those facts, would effectually set aside the action. It is found, that the plaintiffs contracted to deliver to the defendant twenty thousand feet of timber at two dollars per thousand. This timber, if delivered, was the proper [344] subject of an action on book, notwithstanding there was a particular contract as to pride. This is not denied by the defendant’s counsel. The plaintiffs contend that they have actually delivered, and the defendant has received this quantity. The defendant denies the reception of this amount of timber. The auditors were the tribunal to decide this question. The parties were competent witnesses. Other testimony was also admissible. The auditors have decided that there was a sale and delivery. We think they have decided it correctly, from the facts they have reported. The contract was for twenty thousand feet: that quantity was drawn to the place appointed, and placed under the control of the defendant. — The defendant made use of 11,400 feet for the purposes for which he originally wanted it. Now if he had been at liberty to refuse to receive any more, and had given a proper notice to that effect, still if the whole quantity was drawn, and he made use of the residue, or any part of it, it would be a confirmation of the first contract, and acceptance of the whole quantity of timber drawn. The auditors have found, that he has received more than was wanted for the purpose of wharfing — that he has sold at two different times, to different persons, a part of the timber left, after he alleges that he had given notice to the plaintiffs to remove the same. This was evidence of the acceptance of the Wihole, and the effect of it was not impaired by his declarations at the time of the sale. But on another ground this case is clearly with the plaintiffs. The contract was proved. It was proved also that the timber was drawn to the place agreed on. The notice from the defendant to the plaintiffs, after they had commenced drawing, that he should not want as much as he contracted for, and the notice afterwards to them to take it away, were of no consequence, and did not alter the contract in any way whatever.— If it was competent for the defendant, after contracting for a certain quantity, to rescind the contract, and accept of only a part, his notice to that effect should have been specific and particular — directing them how much he did want, and what quantity he would accept; and the plaintiffs, on such notice, could have regulated their conduct accordingly. By the contract, they were under obligation to draw twenty thousand feet for a certain price. If at the time .the notice was given them by defendant, they had drawn ten, fifteen, or nineteen thousand [345] feet, it cannot be contended they were under obligation to, accept for a part the same price which they hád contractedBto receive for the whole. If there had been a power reserved to the defendant by the original contract, to accept of a less quantity, yet the notice which was given by the defendant wás so indefinite, that it was wholly insufficient. The plaintiffs could still have been under the necessity of drawing the whole quantity to fulfil their contract, and the defendant must have accepted of the same. The timber contracted for was sold and delivered to the defendant by the plaintiffs: the fact was proved by proper testimony, and the action on book is the appropriate action therefor. The judgment of the county court must therefore be affirmed.