Albretson v. Hooker

Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

This cause was commenced in the Court below, upon a contract between Albretson and Hooker, by the terms of which, Albretson was [178]to transport one thousand cords of wood from the embarcadero at Sonoma, and deliver the same on the Government wharf at Benicia, using a scow belonging to Hooker for the purpose of transportation, which he was to re-deliver after the completion of his contract; and in consideration of the delivery of said wood, respondent was to receive three thousand dollars in different payments.

The cause was submitted to the Court below, and from the finding of the Court it appears that the respondent did transport from Sonoma eight hundred and eighty-four cords of wood, being all furnished by appellant fit for transportation, all of which was delivered at the place named in the contract, except a small portion carried elsewhere under the permission of appellant.

The Court below also finds that there had been paid by appellant under the contract, one thousand eight hundred and fifty dollars. The Court also finds that the respondent did not re-deliver the scow as required by the agreement, nor did he make an offer equivalent to a delivery. Upon these findings, the Court gave judgment for respondent for the sum of eight hundred and two dollars, balance due.

The findings of the Court are conclusive as to the delivery of the wood, according to the agreement of the parties. From the answer of Hooker, the defendant in the Court below, it appears that Albretson called upon him at his house, situated about five miles from the embarcadero of Sonoma, and informed him that the scow was at the embarcadero, and that he, Albretson, was ready to deliver it. The respondent could do no more than announce his readiness to deliver—treating the conditions of the contract to be performed by the respondent as conditions precedent, as appellant’s counsel argues in his brief; yet the Court has found that he has performed all he was bound to perform, except the re-delivery of the scow, and the answer of Hooker is satisfactory upon that point,

Id would need no authority to show that the party was not bound to deliver the vessel upon dry land at the residence of the defendant. The respondent could only be required to return the vessel in the same element in which he found it; and in the absence of a place designated in the contract, to return it to the place from which it was taken.