Where A contracted to deliver to B a certain quantity of corn, if called for by a particular day, and B did not call for it till some time afterwards: Held, that B was not entitled to recover in assumpsit on the contract.
NASH, J.
The plaintiff declared in assumpsit for the nondelivery of a quantity of corn. The case was: the defendant being much indebted, several of his creditors obtained judgment against him, the executions upon which were levied on the corn in question, which was sold in parcels, and the plaintiff became a purchaser of three of the lots. After the sale had closed, the officer observed to the parties that he could not, at that time, measure out to the purchasers their respective quantities, and proposed to the defendant that he should do it. He agreed to do so. One witness stated his agreement to be that he would deliver it whenever they would call for it. Another witness stated the agreement to be that he would deliver the corn if the purchasers would call for it in a week or ten days. The sale and the agreement were made on 26 March, 1846, and the demand for it in June or July following. His Honor instructed the jury if the promise by the defendant to deliver the corn was as stated by the first witness, the plaintiff was entitled to recover; but if it was as stated by the second witness, he was not, because in that case the defendant's promise to deliver did not extend beyond the time specified, and the subsequent refusal in June or July did not vary the case. The jury found for the defendant, and from the judgment the plaintiff appealed.
We entirely concur with his Honor in the opinion given by him, and for the reason expressed. There being contradictory evidence as to the terms of the contract, it was a proper subject of inquiry to be made by the jury, What was the true and correct agreement? They found that the defendant had agreed to deliver the corn, if called for in a week or ten days. (224) This being the contract, the plaintiff, to avail himself of it in this form of action, ought to have demanded the corn within the time specified — that is, on or before 1 April, 1846 — as the days would then have expired. The action is on the contract, and not for the conversion. The demand and refusal to deliver being made in June, might have entitled the plaintiff to damages in another form of action, but not in this.
PER CURIAM. Judgment affirmed.