Parsons v. District of Columbia

D.C. Circuit

Parsons v. District of Columbia

38 App. D.C. 388, 1912 U.S. App. LEXIS 2139

CourtCourt of Appeals for the D.C. Circuit

DecidedMarch 4, 1912

DocketNo. 2356

StatusPublished

This text of 38 App. D.C. 388 (Parsons v. District of Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Parsons v. District of Columbia, 38 App. D.C. 388, 1912 U.S. App. LEXIS 2139 (D.C. Cir. 1912).

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Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

It developed in the course of plaintiff’s testimony that his contract with the District contained no provision fixing any limitation of time within which the District was to furnish the stone. Neither does it appear that the Williams contract in that particular was made a part of plaintiff’s contract. In a former appeal, 35 App. D. C. 326, we held that the declaration on its face stated a cause of action. If, as alleged, the District had contracted to furnish the stone within sixteen months, and had failed, and plaintiff had been damaged thereby, and had in no way estopped himself, he would undoubtedly have had an action for damages accruing out of the breach of the contract. But that is not the case disclosed by the evidence. The provision in the contract with Williams, by which he was to deliver all the stone within a period of sixteen months, had no relation to plaintiff’s contract. In fact, the only relation between the two contracts was that plaintiff was to use the stone furnished by the District, which was the same stone [391]*391Williams had contracted to furnish the District. If the District was to be bound to plaintiff for the delivery of the stone within the limit of time fixed in the Williams contract, it would have been easy to have put into plaintiff’s contract a clause that would have so obligated the District. But this was not done, and, whatever the hardship may be to plaintiff, we are powerless to supply the defect.

The variance between the allegations of the declaration and the evidence is fatal to the right of recovery. Neither is it apparent that the declaration could be so amended as to cure the defect. Plaintiff’s action rests upon the failure of the District to deliver the stone within a given time, and the delay caused plaintiff by such failure. Inasmuch as no time was contracted for, it is difficult, in the light of the evidence, to understand how an allegation could be framed that would support a suit for damages for a breach of the conditions of the contract, when the cause of action relied upon relates solely to the time of the delivery of the stone.

It is unnecessary to consider the other grounds advanced by counsel for the District in support of the verdict and judgment, some of which seem decisive, since this disposes of the appeal. The judgment is affirmed, with costs, and it is so ordered. Affirmed.

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Mr. Justice Van Orsdel

delivered the opinion of the Court:

It developed in the course of plaintiff’s testimony that his contract with the District contained no provision fixing any limitation of time within which the District was to furnish the stone. Neither does it appear that the Williams contract in that particular was made a part of plaintiff’s contract. In a former appeal, 35 App. D. C. 326, we held that the declaration on its face stated a cause of action. If, as alleged, the District had contracted to furnish the stone within sixteen months, and had failed, and plaintiff had been damaged thereby, and had in no way estopped himself, he would undoubtedly have had an action for damages accruing out of the breach of the contract. But that is not the case disclosed by the evidence. The provision in the contract with Williams, by which he was to deliver all the stone within a period of sixteen months, had no relation to plaintiff’s contract. In fact, the only relation between the two contracts was that plaintiff was to use the stone furnished by the District, which was the same stone [391]*391Williams had contracted to furnish the District. If the District was to be bound to plaintiff for the delivery of the stone within the limit of time fixed in the Williams contract, it would have been easy to have put into plaintiff’s contract a clause that would have so obligated the District. But this was not done, and, whatever the hardship may be to plaintiff, we are powerless to supply the defect.

The variance between the allegations of the declaration and the evidence is fatal to the right of recovery. Neither is it apparent that the declaration could be so amended as to cure the defect. Plaintiff’s action rests upon the failure of the District to deliver the stone within a given time, and the delay caused plaintiff by such failure. Inasmuch as no time was contracted for, it is difficult, in the light of the evidence, to understand how an allegation could be framed that would support a suit for damages for a breach of the conditions of the contract, when the cause of action relied upon relates solely to the time of the delivery of the stone.

It is unnecessary to consider the other grounds advanced by counsel for the District in support of the verdict and judgment, some of which seem decisive, since this disposes of the appeal. The judgment is affirmed, with costs, and it is so ordered. Affirmed.

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Bluebook (online)

38 App. D.C. 388, 1912 U.S. App. LEXIS 2139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parsons-v-district-of-columbia-cadc-1912.