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Pitkin v. Noyes.

to bear on the question whether the stipulation that the party himself should make the goods was of the essence of the contract, and so a contract for work and labor.

As a rule of law, however, it does not strike us as affording a very satisfactory distinction between a contract of sale and a contract for work, labor and materials. If it be of the substance of the contract that the manufacturer shall himself apply his own labor and skill to the manufacture of the goods for the buyer, who is not bound to receive any other, it can make no difference whether the goods are habitually made by such manufacturer or not. If he does habitually make such goods for sale, he may nevertheless contract to bestow his own labor and skill in making them for a particular person, and the real inquiry is whether, in a given instance, be has done so or not.

In the absence of explicit and distinct terms, the circumstances may be such as to indicate clearly that the labor and skill of the particular artist were especially stipulated for, as in the case of an agreement to paint a portrait, to execute a marble statue or any other work of high art. In such cases, and especially where the materials used in the work are of slight importance compared with the labor and skill of the artist, it might well be supposed that the skill and labor were of the essence of the contract, and such seems to have been the opinion of POLLOCK, C. B., in Clay v. Gates, 1 H. & N. 73, before cited.

On the other hand, if the contract be for goods which are usually in the market, and there is nothing in the terms used or in the nature of the case to indicate that the labor and skill of the contractor were stipulated for especially, it must be deemed a contract of sale, and within the statute.

If the article to be manufactured or the crop to be raised is not a marketable commodity, but of value chiefly to the one who contracts for it, that circumstance has been supposed to indicate that the labor and skill of the other were bargained for. Browne on Statute of Frauds, § 308, citing Cason v. Cheely, 6 Geo. 554, which is based upon such a distinction. Whether such a distinction, as a rule of law, is well founded or not, it certainly presents a strong equity in favor of holding such cases as not to be within the statute.

In the case before us the question is whether the essence of the contract was a sale of the expected crop of potatoes at twenty cents a bushel, or a stipulation for defendant's work and labor and mate

Pitkin v. Noyes.

rials in producing them. The proof is of an agreement by defend. ant to raise three acres of potatoes in 1864, and deliver them at the plaintiff's mill at twenty cents the bushel; was it, then, an essential part of the contract that the defendant should himself raise the potatoes? If it was, it would seem from the principles stated that the contract cannot be regarded as a sale.

In the case of Gardner et al. v. Joy, 9 Met. 177, the plaintiffs inquired of the defendant what he would take for sperm candles, and, upon being told, said they would take one hundred boxes, which was assented to; defendant who was a manufacturer then said they were not then manufactured, but he should or would manufacture and deliver them in the course of the summer. The court held this to be a contract for the sale of goods within the statute; and that what was said as to the subsequent manufacture had reference only to the time of delivery, and that the delivery of good merchantable candles of another person's manufacture would have been a compliance with the contract.

In the case before us was the defendant bound himself to raise three acres of potatoes, or only to deliver good merchantable pota. toes in quantity equal to the ordinary product of three acres? Or, in other words, was the stipulation in respect to the three acres introduced only to determine the quantity to be delivered, and not to oblige the defendant to raise them?

It is obvious that the plaintiffs might have an interest in stipulating that defendant should himself raise the potatoes, and as the terms of the contract are explicit that he should do so, we cannot be justified, as the evidence now stands, in holding that this is not an essential part of the agreement.

We are aware of the case of Watts v. Friend, 10 B. & C. 446, before cited. There A. agreed to supply B. with a quantity of turnip seed, and B. agreed to sow it upon his own land and sell the crop to A. at £1, 18. per bushel, and it was held, that in good common sense this must be considered as substantially a contract for goods and chattels, for the thing agreed to be delivered would at the time of delivery be a personal chattel.

The reason assigned here for this decision would apply to all cases where the labor and materials employed were to result in goods and chattels, the price of which was to be the measure of compensation, and, without regard to the question whether in the contemplation of the parties labor and skill were especially contracted for or not, and

Pitkin v. Noyes.

for the reasons already suggested, we are not prepared to assent to that view.

Upon the whole our conclusion on this point is, that, as the question is a mixed one of law and fact, it will be proper to leave it to the jury, in view of all the circumstances of the case, to find whether the contract was essentially for the work and labor and materials of the defendant in raising the potatoes, so that he was bound himself to raise them; or whether it was substantially a sale of potatoes, which he might raise himself, or procure by purchase or otherwise. If it was the former, it would not be within the statute of frauds; but if the latter, it would be.

Another question raised is in regard to the consideration for defendant's agreement. If the plaintiffs agreed to take and pay for the crop of potatoes at the price fixed, that of course would be a sufficient consideration. We are of the opinion, also, that the compromise of doubtful and conflicting claims is a good and sufficient consideration to uphold an agreement. 1 Parsons on Con. 364; Chitty on Con. § 42, and note 1 and cases; Longridge v. Dowille, 5 B. & Ald. 117; Crowther et al. v. Farrer, 15 A. & E. (N. S.), Q. B. 677; Barlow v. Ocean Ins. Co., 4 Met. 270; Tuttle v. Tuttle, 12 id. 551; Crans v. Hunter, 28 N. Y. 389; Gates v. Shatts, 7 Mich. 127; Union Bank of Georgetown v. Geary, 5 Pet. 99; Fleming v. Ramsay, 46 Penn. St. 252; Parker v. Way, 15 N. H. 45; Burnham v. Dunn, 35 id. 560.

The law indeed highly favors the compromise of doubtful claims; but the surrender or discharge of a claim, which is utterly without foundation and known to be so, is not a good consideration for a promise (Kidder v. Blake, 45 N. H. 330, and cases cited); but is otherwise if the claims are doubtful and so understood by the parties, and in such a case the consideration will not be defeated by showing that in fact no valid claim really existed.

In the case before us it does not appear that there was any doubt about the contract for the first year, and if not, an agreement to perform it would be no valid consideration for a new promise. What the evidence on that point was, however, we do not know, and the only question here is as to the law in such cases.

Case discharged.

Taylor v. Grand Trunk Railway Company.

TAYLOR V. GRAND TRUNK RAILWAY COMPANY, appellants.

(48 N. H. 304.)

Carriers of passengers-Degree of care — Exemplary damages.

Carriers of passengers by railroad are bound to exercise the highest degreeof care and diligence in the conduct of their business, and are responsible for the smallest negligence.

In an action against a railroad company to recover for injuries sustained by an accident, the court charged the jury that "defendants must use such degree of care as is practicable short of incurring an expense which would render it altogether impossible to conduct the business." Held, to be erroneous, as making the ability of the corporation the measure of the care and diligence required. While, as a rule, railroad corporations are not bound to exercise such a degree of care as would render it practically impossible to continue this mode of transportation, yet the standard of care and diligence for a particular railroad cannot be made to depend upon its pecuniary condition. It is bound to provide all the agencies suited to the nature and extent of the business it purposes to do, irrespective of any fluctuation in its revenue. Held, further, that a charge to the jury, that if they found that the accident was caused by the gross negligence of defendants, they might in their discretion give exemplary damages, was correct.

THIS was an action brought to recover damages sustained by reason of an accident on defendants' road. The accident was caused by the breaking of a rail, and evidence was introduced by the plaintiff to show that the track was very much curved at the point of the accident; that the rail which broke was very much worn and battered, and not suitable for use. The defendants' evidence tended to show that the breaking was caused by a hidden defect in the rail, which it lay beyond their power to detect.

The court charged the jury in substance, that the burden of proving defendants' negligence was on the plaintiff; that the defendants were not insurers, but were liable for the smallest negligence; that they were bound to use the highest degree of care and diligence, or such a degree as is practicable short of incurring an expense which would render it altogether impossible to continue the business; and that if they found that the accident was caused by the gross negligence of defendants, the jury might if they chose gire exemplary damages, but that they were not bound to do sc.

The jury were requested in case they gave exemplary damages, to assess the compensatory and exemplary damages separately.

Taylor v. Grand Trunk Railway Company.

The jury found for plaintiff, and assessed the compensatory damages at $500, and the exemplary damages at $858.50. Defendants appealed.

Ray & Ladd, Widden & Heywood, for plaintiff.

Fletcher & Bingham, for defendants.

BELLOWS, J., (after deciding some questions of practice).

The great question in the case is upon the instructions to the jury in respect to the duty of the defendants; the court having apparently answered that the carriers of passengers by railroad are bound to exercise the highest degree of care and diligence in the conduct of their business, and that they are responsible for the smallest negligence.

Upon a careful examination of the authorities we think this general view of the duties of such carriers, taken in the charge, is correct. It is applicable, indeed, to the carriers of passengers by stage coaches, where the rate of speed is not much above six miles the hour, and it is very obvious that a higher degree of care and skill is demanded in the transportation of passengers by steain upon a railroad, where the speed is so much greater.

In the English courts the proprietors of stage coaches are held to a high degree of care and skill. In Aston v. Heaven et al., 2 Esp. 533, it was said, per EYRE, C. J., that the driver was answerable for the smallest negligence. In Christie v. Greggs, 2 Camp. 79, it was held that the undertaking of the carrier of passengers went no further than this, that, as far as human care and foresight could go, he would provide for their safe conveyance.

In Crofts v. Waterhouse, 3 Bing. 319, BEST, C. J., lays it down that the coachmen must have competent skill, and must use that skill with diligence, must know the road, have steady horses, and a sufficient coach and harnesses; and if there be the least failure in any one of these things the duty of the coach proprietor is not fulfilled, and he is answerable for any injury or damage that may happen.

In Sharp v. Gray, 9 Bing. 457, the case was that the axle-tree broke in consequence of a defect in the iron, and it was left to the jury to determine whether there had been the vigilance in examining the axle-tree, which was required by the engagement to carry the plaintiff safely, although from the language of the judges it

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