Wood v. Edwards

19 Johns. 205

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. (After stating the facts in the case.) It appears to us*' that the contract of the 13th of August, 1813, was never given up, or rescinded. The defendant, Edwards, fulfilled the stipulation on his part. He gave the security according to the engagement, before any of the plaister was delivered. This security was accepted by the plaintiffs. This appears from the instrument of guaranty executed by B. fy K., which the plaintiffs themselves produced. They never objected to the responsibility of B. K., when asked by the defendant to inform him if they were satisfactory: and the plaintiffs went on, after this security was given, and delivered nearly one half of the whole quantity of plaister which they had contracted to deliver. It cannot be contended, then, that the plaintiffs did not approve and accept of B. K. as security for E. under the contract.

The contract of January, 1814, was entirely inoperative; for although Edwards, in his letter, stated that he and the Other defendants had agreed to it, yet he also stated that the cont'ract was to be executed. E. was not bound by this unexecuted agreement, unless the plaintiffs were also bound, as most clearly they were not. The cases of Tucker v. Woods, (12 Johns. Rep. 190.) and of Cook v. Oxley, (3 Term Rep. 653.) decidedly show, that the proposition of E. to execute the new agreement was not binding on him, as well on the ground of a want of consideration, as a want of mutuality, "since the plaintiffs, on their part, were not bound to execute the agreement.

It was thrown out, on the part of the plaintiffs, on the argument, that they were prevented from fulfilling the contract ,on their part, in consequence of their boats being impressed by government, so as to render it impossible to deliver the plaister within the time limited by the contract. But as the fact, that they were so prevented, is not proved, it is not necessary to consider, whether it would be sufficient to excuse the non-performance.

These considerations are sufficient to dispose of this case; and to show, that the plaintiffs cannot recover on an implied assumpsit, when there is an existing written and sealed contract under which the plaister was delivered. The defendants are, therefore, entitled to judgment.

Judgment for the defendants.