Lawrence v. Davey

The opinion of the court was delivered by Kedeield, Ch. J. We think the testimony given by the plaintiff in the present case did tend to show that the defendant, after a failure of the plaintiff to perform strictly according to the stipulations of the special contract, did agree, upon sufficient consideration, to waive such failure, and accept of the remainder of the Coal, [267] although not dehvered strictly according to the terms of the written contract, and pay for them at the stipulated price; and that the testimony was properly submitted to the jury, as tending to show a waiver of the special contract, so far as to enable the plaintiff to recover for the coal delivered and accepted, although not strictly in conformity with the stipulations of such special contract. And this being found by the jury, the plaintiff was entitled to recover the stipulated price of the coal delivered; and in this form of action, inasmuch as he could not recover, under the special contract, without alleging that the coal, for- which he sought to recover, was delivered in conformity with the stipulations of such contract. For, although the contract contains stipulations to make monthly payments, it is only for such coal as shall have been delivered, from time to time, under the contract. We think, therefore, that it would not be giving this special contract its proper force, to say that the stipulations for payment are independent covenants, depending for their consideration upon the covenants of the plaintiff, and not upon his performance of them. The fact undoubtedly is, that the obligation of the defendant to pay, under the special contract, depends exclusively upon the performance of the plaintiff, and we think it fair to say that the meaning of the parties undoubtedly is, that the monthly payments are only to be made, upon condition that the plaintiff does deliver not only some of the coal, and such as he claims payment for, from time to time, but that in the whole he delivers all that the contract stipulates, and in the time stipulated. Any other view of the contract would make the contract unreasonable. It is true that, if such a contract contain a stipulation to make payments in advance of the delivery of the goods, or performance of service, this does, of necessity, render the covenants independent. But we do not so understand the present contract. In this view of the case, it seems to come clearly within the principle of repeated decisions of this court, following in the line of Porter v. Stewart, 1 Vt. 44. Sherwin v. R. & B. R. Company, 24 Vt. 347. And, although the promise to waive the contract was after some portion of the coal sought to he recovered had been delivered, and so delivered that probably the plaintiff, if the defendant had insisted upon strict performance of the contract, could not have recovered [268] anything for it, yet, nevertheless, the agreement to waive the contract, and the promise, and, above all, the delivery of coal after this agreement to waive the contract, and upon the faith of it, will be a sufficient consideration to bind the defendant to pay for the coal already received. Judgment affirmed.