Opinion
Argued April 14th
Decided April 28th, 1871
Homer A. Nelson, of counsel for the appellant.
A. Anthony, for the respondent.
It was assumed by the court on the trial, that the defendant was bound by the contract proved. No question as to the consideration was made. The plaintiff was nonsuited on the ground, that the defendant had performed the contract, when he had designated one place on his farm from which molding sand might be taken by the plaintiff, and that he was not bound to designate another, when the supply at the place first designated became exhausted. It had been shown by the plaintiff that in June, 1867, the supply of sand failed at the place designated, and that although it could have been procured elsewhere on the premises, the defendant refused to designate any other point from which the plaintiff might take it.
The contract is not, we think, subject to the limited construction which was given to it. It does not indicate any intention on the part of the defendant to restrict the taking of sand to a single location. The permission to the plaintiff to dig it, covered the whole time between the opening and close of navigation. He was authorized to dig in "such places" as should be designated by the defendant, implying that several or successive designations might become necessary. The defendant reserved the right to indicate the points from which the sand should be taken, but the right of the plaintiff to sand from the premises was not terminated by the failure of the supply at a given point.
The agreement sued upon does not show upon its face any consideration which will support an action upon it against the defendant.
The plaintiff does not agree to take any sand, nor is there any understanding on his part which furnishes a consideration for the agreement of the defendant. ( The Chicago and North-eastern R.R. Co. v. Dane et al., 4 Hand [43 N.Y.], 241.) But a consideration may be shown by extrinsic evidence, and as this point was not raised on the trial, we cannot assume that such consideration did not exist.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All the judges agreeing, judgment reversed and new trial ordered.