Opinion
June Term, 1853.
If A. agrees with B. to furnish him a flat boat, of a certain description, by a time and for a price certain, A. has a right to employ another to do the job for him, and if the boat is furnished according to contract, B. is bound to pay for it, however much A. may make by the operation.
THIS was an action of assumpsit, tried before Manly, J., at JONES, on the last Spring Circuit. The declaration contained three counts: 1st, for goods sold and delivered; 2d, on a special contract; 3d, for work and labor done.
J. H. and J. W. Bryan for defendant.
No counsel for plaintiff in this Court.
It appeared in evidence that in January, 1846, the defendant contracted to pay the plaintiff $250 for a flat boat of 250 barrels burden, to be finished by the plaintiff by 1 May, 1846; the boat when finished to be sent for to New Bern by the defendant. It further appeared that the plaintiff had the boat constructed in the shipyard of Messrs. (328) Howard, Pittman and Company, of New Bern, he paying them $225 for their work; and that at the time of making such contract, the name of the defendant was not known to the builders, they contracting entirely with the plaintiff and receiving their price from him in advance. It was also shown that the boat was finished about 15 April, 1846, and was launched on the last day of that month, all complete; also that it possessed the qualities contracted for. The boat has remained at the shipyard where it was launched up to the present time, and is now rotten and decayed.
It further appeared in evidence, that the shipbuilders had consented to the use of their names by the plaintiff in a former suit for the price of this boat, brought against the defendant, which resulted in a nonsuit, but they knew nothing more about the suit. And it was shown that the defendant had admitted the receipt of a letter from the plaintiff in August, 1846, asking for a settlement for the flat boat, and that he refused to pay, because, as he alleged, it was not finished in time, according to the contract.
His Honor charged the jury to inquire from the evidence whether a contract, such as that declared on, had been made by the defendant with the plaintiff; whether the place of delivery was the harbor of New Bern, and the time 1 May; and if so, whether the plaintiff had the boat then and there finished, ready to deliver, and failed to do so only in consequence of the nonattendance of the defendant. In such case, the plaintiff was entitled to recover the contract price, with interest from 1 May. The jury were further instructed by his Honor, that no other notice or demand was necessary than such as had appeared in evidence.
There was a verdict for the plaintiff. Rule nisi for misdirection; rule discharged, and the defendant appealed to the Supreme Court.
It could not be told that this case now before us, is the same as that which was before us in June, 1851 (12 Ire., 19), except from the fact, that the names are the same, and the subject of controversy is the price of a flat boat built in New Bern, by (329) Howard, Pittman and Company.
Then the case, as presented by the evidence, was that of an agent, who, in the name of his principal, made a contract with certain shipbuilders for the building of a flat boat of a certain description, and a certain time, for the price of $225. Now, this case, as presented by the evidence, is that of one who agrees to furnish another with a flat boat, of a certain description, by a certain time, for the price of $250; and to enable him to do so, engages certain shipbuilders to build a flat boat for him, at the price of $225, which he pays to them at the time without disclosing to the shipbuilders for whom the flat is intended; and then accordingly build the boat of the proper description, and have it launched, all complete, by the time agreed on. But the defendant for whom the plaintiff had procured the boat to be built, refuses to accept it and pay to the plaintiff the price agreed on. The right of the plaintiff to recover in the case as now presented, is too clear to talk about; and we can conceive of no other reason which induced the defendant to appeal, unless it was to show how much a law suit can be changed during the progress of its prosecution. We presume that the defendant's reason for not accepting the boat was because he imagined he had been ill treated by the plaintiff, who was to furnish him the boat at $250, and had procured it to be built for $225, and that it was not right for the plaintiff to make $25 by the operation. However this may be, the defendant had agreed to give the plaintiff $250 for a boat of the description agreed on, and as the boat was ready for him, all complete, by the time, he was bound to take it and pay for it according to his contract.
PER CURIAM. Judgment affirmed.
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