Sage v. Hazard

By the Court, Hurlbut, J.

On the 2d day of December, 1846, the defendant agreed to charter to the plaintiff, and the latter agreed to take from the defendant, the ship Jessore of New-York, which was at that time on her passage from Havre to New York, having cleared from Havre about the 24th of September. She was to be laden with flour for Liverpool or London, at certain rates of compensation for freight. And it was further agreed, &c. that should the said vessel arrive in New-York on or before the 10th of the said month of December■, then the agreement was \to be] in full force—but should she not arrive on or before that time the plaintiff had the option of continuing the agreement or not. The vessel did not arrive until the 28th of December, and the plaintiff on that day elected to continue the agreement.

It is objected by the defendant, that this agreement wants consideration. The promise of the plaintiff to charter the vessel furnished ample consideration for the defendant’s undertaking. It is a case of mutual promises, and although the obligation of the contract was partly optional as to one party, that is no objection, provided there was a good consideration to uphold the agreement. (Giles v. Bradley, 2 John. Cas. 253. Disborough v. Nelson, 3 Id. 81.) The true question arises upon the construction of the agreement set forth in the declaration. The vessel not having arrived on the 10th of December, the plaintiff could not have been held to employ her after that day; and all obligation on his part to the defendant ceased at that time, unless he volunteered to continue it. The vitality of the agreement thenceforth depended upon the exercise of an option reserved to himself. If he had elected to be further-bound, and had notified the defendant of his election at a proper time, the contract would have become absolute, and binding upon both parties. “ The plaintiff had the option of continuing the agreement or not.” This is the language of the contract, and it seems to negative the idea that there might be a space of time between the 10th of December and the day when the vessel should arrive, during which neither party should be bound. The agreement was to cease after the 10th of December, unless it was cmtinued by an exercise of the plaintiff’s option. It was for him to carry the agreement forward, and insist upon its obligation from that day forth. It seems to us that his option ought to have been determined on the 11th of December.

There are cases, as suggested by the learned counsel for the plaintiff, where a similar option may be exercised within a reasonable time, and what that is may be a question of fact for the jury. But such a question can never arise where the agreement itself can be fairly construed to settle the time at which the option is to be determined. It then becomes a question of law for the court.

There must be judgment for the defendant on the demurrer, with leave to the plaintiff to amend on payment of costs.