Cushman v. Somers

The opinion of the court was delivered by Tyler, J. It appears that Jones assigned all his interest in the contract with Eussell to the plaintiff, who thereupon .assumed all the duties and obligations that it imposed upon Jones. The plaintiff then sold to the defendant a half interest in the contract, namely, the right to use one machine in the town of Barnet, the defendant covenanting with the plaintiff to pay him therefor one half the number of tons of dry pulp required in the articles of agreement between Eussell and Jones, payment to commence from December 1, 1880, and to be made at such times and upon such terms as that agreement specifies. The Eussell-Jones contract is made a part of the contract between these parties to the extent, at least, of making the place of delivery dependent on Eussell’s designation. The demurrer raises the question, whether upon the averment in the declaration that the pulp was' to be delivered in car-loads at such places as Eussell might designate, such designation was a condition precedent to the plaintiff’s right of recovery. This should not be determined by technical and artificial rules ; but it should be ascertained by a fair construction of the contracts, whether it was the intention of the parties that the defendant’s liability to pay for the use of the machine should depend on Eussell’s designation of a place of delivery of the pulp. [617] It can hardly be claimed .that- the defendant did not become indebted to the plaintiff for the use of the machine to the amount of twelve tons of pulp a year during the term of such use. The declaration avers an indebtedness, and the demurrer admits it. A designation of place of delivery by Russell was not an essential part of the consideration of the contract. It was a mere privilege reserved to him, and upon his omission to exercise it within a reasonable time it became the duty of the defendant, in order to discharge himself from liability, to designate a suitable place of delivery and then to deliver the pulp within the time specified, and notify the plaintiff thereof. As was said by the court in Welsh v. Bradley, 41 Vt. 308: “ If this was not so, all remedy upon the obligation might be lost for ever, and in respect to a claim or debt unquestionably due.”. This is in effect the law as laid down in Russell v. Ormsbee, 10 Vt. 274, and Peck v. Hubbard, 11 Vt. 612. As to the election of the kind of pulp, it makes no difference whether it was in Russell or the defendant. If in Russell, as the defendant claims, it was waived by non-exercise, and the election fell to defendant. Judgment affirmed and cause remanded.