Opinion
FEBRUARY TERM, 1806.
This question was submitted, without argument, by Swann, for the plaintiffs in error, and E.J. Lee, for the defendant.
ERROR to the circuit court of the district of Columbia, in an action of assumpsit, for not delivering flour according to contract.
The transcript of the record contained a bill of exceptions, which stated, that the plaintiff offered in evidence the following writing, addressed by the plaintiff below, to the defendants, the present plaintiffs in error, viz.
"Will you receive my flour on the following terms, viz. Whenever a load of flour is delivered, should any cooperage be wanting, you charge it to the waggoner, and deduct it from the carriage. You will credit me with the highest market price at the time of delivery, and note it on the receipt; and any balance of flour that may remain in your hands unpaid as it is delivered, you will pay me when I send for it, or deliver as much flour as is coming to me, at my option. It is understood, that in case the flour is delivered, storage is to be allowed or charged at sixpence per barrel.
" Agreed. Given under our hands, Alexandria, April 27th, 1803.
(Signed) DOUGLASS MANDEVILLE, JOHN M`ALLISTER."
The defendants had received from the plaintiff 408 barrels of flour under that contract, and the plaintiff made his election, and demanded the flour of the defendants on the 14th October, 1803. No final answer was made by the defendants to the demand, till the 19th of November; but the intermediate time was given to them to consider of the demand, and make propositions of compromise. No compromise being made, and the flour not being delivered, this action was commenced on the 21st of the same month. It did not appear that any answer was given to the plaintiff's demand. At the trial, the plaintiff offered evidence to the jury of the price of flour on the 19th and 21st days of November, the price being the same on both days, and contended to the jury only for that price. Whereupon, the counsel for the defendants prayed the court to instruct the jury, that in estimating the compensation for the non-delivery of the said flour, they should be governed by the price of that article on the day the plaintiff signified his option, and made his demand under the contract, to have the flour specifically delivered to him; and further prayed the court, in case the aforesaid instruction was not given, to direct the jury by what rule, in point of time, they are to take the price of flour, in the estimation of the damages sustained by the plaintiff, by reason of the breach of the contract. But the court being divided in opinion upon those points, (two judges only being present) did not give the instructions as prayed, wherefore the defendants excepted, c.
The jury found a verdict for the plaintiff, for 2,159 dollars and 48 cents, upon which judgment was rendered accordingly, and the defendants brought their writ of error.
The question before this court was, whether the court below ought to have given the instructions prayed for by the plaintiffs in error.
The error complained of is, that the circuit court did not give an opinion on a point proposed. The court was certainly bound to give an opinion, if required, upon any point relevant to the issue.
It appears, from the facts stated, that the cause of action did not accrue until the 19th of November, when the negotiation for a compromise was broken off. A tender of the flour at any time, after the 14th, and before the 19th, would have been a compliance with the contract.
As the plaintiff claimed no more than the price of the flour on the 19th, and as the refusal of the court to instruct the jury, did not alter the verdict, which was for the price on that day, and was for the same amount as if the opinion had been given, there is no error of which the defendants could complain.
Judgment affirmed, with costs.