The opinion of the Court was delivered by
Mellen C. J.'The general question reserved in this case is, whether upon the facts reported, the defendant is entitled to retain the verdict which the jury have returned in his favor; though, if the instruction of the presiding Judge was correct, there must be judgment on the verdict, without regard to the general question. Who then had the option as to the time of performance of the contract made between the parties ? The Judge instructed the jury that it was with the defendant.
In payment for a quantity of rice purchased by the defendant of the plaintiff, the defendant agreed to transport freight from Georgetown in South Carolina to New York, in his schooner Constellation, in the course of the season following the time when the contract was made in 1825, during all which season it was understood that the vessel was to be employed in carrying timber from Georgetown to New York. The jury, upon the evidence, found and certified to the court that the freight, to which the contract had respect, was to be carried in the cabin, and that the refusal of the defendant to comply with the plaintiff’s demand in the spring of 1826, was not, in then existing circumstances, a violation of the contract; as the vessel was then deeply laden with timber, and it would have been improper for her to move up the river to Kinlock’s mills, where vessels of her size were not proved to have gone. Besides, the usual cabin freight from Georgetown consists of bags and skins ; but rice at Georgetown is put up in casks only. It appears also that the defendant on *78two or three occasions during the freighting season, and prior to the plaintiff’s demand in the spring of 1826, he then being at Georgetown, offered to the plaintiff to take freight, but the plaintiff did not furnish him with any. According to the case of Barruss v. Madan, 2 Johns. 145, the defendant was to do the first act in order of time; that is, to be ready at Georgetown with his vessel, as the well known course of his business would allow, ready to take the stipulated freight; and that the deposit of rice at jKinlock’s mills, was not a condition precedent. There appears to be considerable difficulty in deciding in this particular- case, who had the option as to time, the plaintiff or the defendant; and as it is unnecessary for us to decide it, we place our judgment upon the general ground beforementioned.
The contract of the parties is based on the fact that the defendant, during the season in question, was to be regularly employed an the transportation of lumber from Georgetown to New York; that, of course, the Constellation could be at Georgetown only occasionally, during the contemplated season, regularly returning' to that port, after delivering her cargo at New York, in order to take in another load at Georgetown. The defendant, therefore, at each return of the Constellation to that port, complied with his duty in performing the preliminary act on his part, by being at the proper place, ready to receive the stipulated freight. On two or three of these occasions, as we have before mentioned, he offered to the plaintiff, who was at Georgetown, to take freight, but none was ready; at least none was furnished. It does not appear that the plaintiff ever offered, or, indeed, had any in readiness, except once in the spring of 1826, and then under circumstances, which in the opinion of the jury, furnished sufficient grounds for declining to receive it. The plaintiff seems to have been on the spot, and the defendant was there also with his vessel as often as the parties expected and understood she would be, when they entered into the contract. We consider this as a circumstance of importance, leading to a satisfactory construction of the contract, as to the nature and extent of the duties devolving on each of them. On the whole we think the defence is maintained by the evidence reported, and therefore there must be
Judgment on the verdict.