Jones v. Post

Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Justice Terry concurred.

By the terms of the contract, it is clear that at least a portion of the cattle and sheep were to he delivered in each of the months named in the contract. As to what particular time in each month the delivery was to take place, depended upon the subsequent agreement of the parties.

When however the defendants, on the-day of April gave to the plaintiff a delivery order for a certain number of sheep, this order, accepted by the plaintiff, fixed the time of delivery. It was then to be made within a reasonable and convenient time after the presentation of the order.

When the order was presented, Thompson, to whom it was directed, was informed that the sheep were to be taken on board the steamer Sea Bird, on her return trip. This, it appears from the evidence, would have taken between three and four days, and was therefore a reasonable time, as it appears that the sheep were only twenty-five or thirty miles distant. No objection was made as to the time by Thompson, and at first he answered that the plaintiff could have the sheep. The next morning he declined the delivery which he had before assented to, on the ground that it was Holy Week, a festival of the Catholic Church, and therefore he could not obtain laborers to perform the work necessary to a delivery.

This was a breach of the contract, because the time of delivery being fixed, the inability to obtain laborers was a misfortune of the defendants, and was not provided against by the terms of the contract. It therefore entitles the plaintiff to his action.

The notice or declaration of the plaintiff that he rescinded the contract as to the sheep, amounts to nothing which can affect his rights in this action. The contract was entire, and he could not abandon a part and hold to another part. Indeed he had no power to rescind, because that term implies the volition and action of both parties. The effect of his conduct connected with his bringing this suit, is that he abandoned the contract and relied upon his action for damages.

The point as to this claim being within the Statutes of Frauds, is not well taken. It was a guaranty cotemporaneous with another contract, and was therefore a part of that contract. In the latter the consideration is fully expressed, and if it be said that this latter is only signed by the defendants in their character as agents, yet it has been done in a form which binds them personally. The name of the principal is not signed to the contract. The defendants sign their own names, describing themselves as agents. The effect of this we decided at the last Term, in the case of Sayre v. Nichols.