Mixer v. Williams

The opinion of the court was delivered by Hebjsrd, J. The defendant, in argument, has started a preliminary question, that, as this was an entire contract, the plaintiffs could not sustain this action, until the time for fulfilling the contract had expired. That principle of law is correct, when correctly applied. This was an entire contract, but was divisible into parts, and was like a contract for the payment of money by instalments; and so the right of action accrues, whenever there is an instalment due, and admits of successive actions for each hr each, or failure, to perform the contract. The question in the case, before the court, is, whether the testimony sustained either count in the declaration; and not whether it [463] tended to sustain it. The testimony was all on paper, and was before the court, and, as a question of law, it became the duty of the court to instruct the jury whether the testimony, all being true, proved the contract alleged. When an objection is taken to the admission of testimony, then the question of tendency is involved. In relation to the first count, we find no difficulty in making out the authority from the defendant to the plaintiffs to contract his starch, as therein set forth; but the difficulty is, in finding the evidence that they did so contract it. If it is to be found, it is in the deposition of Isaac Pitman. By this it appears that the plaintiffs were already under contract with the “ Boot Mills ” to deliver to them sixty tons of starch per year, — thirty tons of which the plaintiffs had contracted for with one Melvin, — and that upon the receipt of the defendant’s letter of June 30, authorizing the plaintiffs to contract his starch, the plaintiffs appropriated the starch to be made' by the defendant to the contract with the “ Boot Mills.” This falls short of proving the allegation in the writ. The only contract the plaintiffs made with the “ Boot Mills ” was made before the 30th of June, and before the defendant had authorized them to contract his starch; and at the time the plaintiffs contracted with the “ Boot Mills,” they not only had no authority to contract the defendant’s starch, but they did not do so in fact. ' In relation to the second count, a part of the same remarks will apply. This counts upon a contract of sale from the defendant to the plaintiffs. The proposition from the plaintiffs to the defendant ■and the authority back, in the letter of June 30, were to contract for the sale of it to others; it was not, therefore, a contract to sell to the plaintiffs. The plaintiffs rely upon the memorandum of sale,, sent to the defendant for him to sign and return. The letter containing this memorandum and a subsequent letter, of Sept. 25, from the plaintiffs to the defendant, were held by this court, a year since as being notice to the defendant that the plaintiffs had contracted his starch. Their having authority to contract, and giving notice back that they had contracted, does- not relieve the difficulty. While claiming damages for a violation of the contract on the part of the defendant, the plaintiffs must prove that they contracted the starch, as they were authorized to do, and as they gave notice that they had done. This they have failed to do. [464] The memorandum contained the terms of a contract between the plaintiffs and the defendant; and it is urged that the defendant’s neglect to answer or return the memorandum is to be taken as evidence that he assented to the terms of it. The converse of this I should hold, as being the most tenable. When the plaintiffs sent this memorandum to the defendant, they requested him to sign and return it; therefore his neglect to return it would be notice to the plaintiffs that he did not ratify it. The plaintiffs, upon their proof, are not entitled to recover upon the first count, because they did not contract the defendant’s starch with the “ Boot Mills” corporation, although they were authorized to do so, and notified the defendant that they had done so; and, under the second count, the plaintiffs fail to prove that any negotiation was commenced for the sale of the starch to the plaintiffs. The judgment is affirmed.