Coleman v. Edwards

Bartley, J. The first question made by the plaintiff in error is as to the sufficiency of the bill of exceptions. The cause was tried in the common pleas before a jury, at the November term, 1849, and, after verdict for the defendant, the plaintiffs moved for a new trial, for the reason of misdirection of the court to the jury; which motion the court held under advisement until the next term, when the motion was overruled, and judgment entered on the verdict. And the bill of exceptions was tendered and signed and sealed by the court, on the overruling of the motion for a new trial. The statute of March 12, 1845, relating to the allowance of bills of exceptions, under which this proceeding was had, authorized the party to take his bill of exceptions, and made it the duty of the judges to sign and seal it during the term at which the opinion was given, order made, or judgment rendered, to which the exception was alleged. Now, the bill of exceptions, in this case, was taken to the order overruling the motion for a new trial grounded on a supposed misdirection of the court to the jury. If the bill of exceptions had relation simply to the instructions of the court to the jury, which were given at the November term, 1849, it would have been bad, because not [56] signed and sealed at that term. But an exception to instructions to the jury, in the charge of the court, is one thing, and an exception to an order overruling a motion for a new trial, for the reason of misdirection of the court to the jury, in the charge, is another and different thing. And these proceedings, clearly distinguishable, must not be confounded. If there were error in the instructions given to the jury, it was the duty of the court to grant a new trial, even at the next term, to which the motion had been continued. The power of the court to continue the motion for a new trial, under advisement, until the next term, is unquestionable, and yet, according to the construction of the statute claimed by the plaintiff in error, the exercise of this power would enable the court to deprive the party of the right to a bill of exceptions to the order overruling the motion for a new trial —a right secured by the positive provisions of the statute. ' It is insisted that this question has been differently decided in the case of Hicks v. Person, 19 O. R. 435. But, duly considered, that ease cannot be so taken. It is true, in the reasoning of the judge delivering the opinion, such a construction of the statute is strongly intimated, but the opinion on this point concludes as follows: “ Under these circumstances, we are of opinion that we cannot with propriety interfere with the judgment of the court of common pleas for any error supposed to have been committed by that court, in its action in the November term, 1847,” which was the term of the trial, the motion for new trial having been continued, and overruled at the March term, 1848, when the bill of exceptions was signed and sealed. Now, this conclusion is not at all inconsistent with the views taken in the case now before us. No bill of exceptions having been taken to the instructions given in the charge to the jury, at the November term, 1847, the court could not reverse the judgment of the common pleas for error committed at that term, on a bill of exceptions taken at a subsequent term. But the court- does not say, in the conclusion, that they could not interfere, upon the ground of error committed in the order overruling the motion for a new trial, at the March term, 1848. On the contrary, the court did proceed (for reasons assigned not vexy satisfactory) [57] to consider and decide the case on the assignments of error predicated on the bill of exceptions. If the opinion in this case had to be considered, as confounding an exception to instructions to the jury given on the trial, with an exception to an order overruling a motion for a new trial, grounded on a misdirection of the court to the jury, it would have to be overruled. We find no difficulty in disposing of this case on its merits. The contract sued on was for the delivery of specific articles, within a specified time ; and where the party bound to make the delivery has made a tender, which, through inadvertence or mistake, turns out to be insufficient and ineffectual, he has the right to make a subsequent tender of articles such as are required by the contract, within the time specified, unless there be some provision in the terms of the contract preventing it. Edwards and Jackson bound themselves to deliver to Coleman, in the city of Cincinnati, between the 20th of November and the 10th of December, 1847, five hundred hogs well fatted, and of the average weight of one hundred and ninety pounds net, Coleman to have the sole benefit and control of the slaughtering of them, which was to be done within a reasonable time, weather permitting. It appears, that after Edwards & Jackson had delivered five hundred hogs, which, on being slaughtered and weighed, and ascertained to fall three pounds short of the average contract weight, had been rejected by Coleman as not being in strict conformity to the contract, they made a subsequent tender of five hundred hogs, claimed to be in full compliance with the contract, and within the time specified for the delivery. As to the evidence tending to prove this, however, and the instructions to the jury on the subject, asked by the defendants in error, the court charged the jury, that Edwards and Jackson having delivered five hundred hogs as a compliance with their covenants, if this delivery failed for insufficiency, and the hogs were rejected, a second tender of performance could not be made. In this the court erred. The provision of the contract, that the party receiving the hogs should have the sole benefit and control of the slaughtering of them, imposed no burden or condition upon him, (the slaughtering being paid for by the offals, and the con [58] trol of the slaughtering being a benefit,) which deprives the other party of the right to make a subsequent tender of performance in full compliance with the contract, within the time specified. Had the slaughtering of the hogs imposed a burden on Coleman, it might have had a material bearing on the rights of the parties; but it appears that the offals, at Cincinnati, fully compensate for the slaughtering of hogs ; and that Coleman stipulated for the slaughtering as a benefit to himself. And had he been indisposed to slaughter the hogs offered by the second tender, he could of course have had it done without any expense to himself. Judgment of the district court affirmed. Thurman, C. J., dissented as to the first and third propositions in the syllabus.