#### *White v. Toncray.*

April, 1838,

Richmond.

(Absent Brockenbrough, J.)

Pleading and Practice — Rejected Plea — When Part of Record. †— Pleas tendered by a defendant in an action at law, and rejected by the court, are not part of the record, unless made so by bill of exceptions to the rejection of them, or by order of the court that they shall be made so; and a mere memorandum, that, when the pleas were rejected, the court declared that the matter thereof might be given in evidence without the pleas being filed, and that this was done at the trial, does not make the rejected pleas part of the record.

*129Same — Same—Failure to Take Exception — Presumption in Appellate Court.‡ — If pleas "be tendered by a defendant and rejected by the court, and he takes no exception to the rejection of them, he shall be presumed in the appellate court to have acquiesced.

Carriers — Covenant for Transportation of Salt — Election of Annual Quantity.§ — Covenant between a carrier and a manufacturer of salt, whereby the carrier agrees to transport from 1200 to 5000 barrels of salt, annually for three years, from the manufacturer’s salt works to certain specified places, for a stipnlated reward per barrel transported: Held, that the manufacturer, not the carrier, had the right to elect what quantity of salt, not less than 1200 nor more than 5000 barrels, should be transported by the carrier annually.

In an action of covenant, brought by Toncray against White, in the circuit court of Washington, the declaration set forth a covenant, dated the 25th August 1823, between the plaintiff Toncray, a carrier, and the defendant White, a manufacturer of salt at Saltville (the name of King’s salt works in Washington), to the following effect — that the plaintiff should transport for the defendant, from Saltville, down the Holston and Tennessee rivers, from 1200 to 5000 barrels of salt annually for three years next succeeding the date of the covenant, if the state of the water permitted, and should deliver the same safely to the defendant or his consignees, on the top of the bank of the Tennessee, at any point the defendant should direct from Florence below the Muscle Shoals to the mouth of the river, except one third part of the salt *so transported, which the plaintiff reserved the right to deliver at Marathron at the head of the Shoals ; for the transportation of which the defendant was to pay the plaintiff 25 dollars, per ton for all delivered at Florence and below, and22 dollars per ton for all delivered at Marathron ; and for all salt received by the plaintiff at Saltville, and not delivered to the defendant or his consignees at some point on the Tennessee, the plaintiff was to be charged 1 dollar 25 cents for each bushel, and 46 cents for each barrel containing it, or he was to be charged the Tennessee money selling price at Saltville, in part payment of what should he due to him for the transportation; and the balance due him on that account, should be paid him by the defendant, in Tennessee money, within twelve months from the delivery of the salt to the plaintiff at Saltville to be transported; but if any of the salt delivered to the plaintiff to be transported, should be lost by the staving or the sinking of the boats, on satisfactory proof made thereof by the plaintiff, he should be charged only 50 cents per bushel for the salt so lost, and 46 cents for each barrel containing the same. And, after declaring the intent and effect of the covenant to be, that the defendant should •annually during the term of the three years, when required, furnish to the plaintiff at Saltville, to be by him transported, from 1200 to 5000 barrels of salt, at the plaintiff’s election, and should keep the quantity of 5000 barrels annually to be transported by the plaintiff, when called for, and should have consignees ready at all times to receive the salt so transported, — the declaration averred, that the plaintiff did, in pursuance of the contract, transport and deliver large quantities of salt, having commenced the day after the date of the covenant, and continued to transport and deliver large quantities until the 19th August 1825, on which day the defendant refused to deliver any more salt to the plaintiff, whereby the plaintiff was prevented from further performing the covenant on his part ; that *the plaintiff had made large engagements with wagoners to carry salt from Saltville, and had made expensive preparations for the transportation of the salt the expense whereof was wholly or in a great measure lost to him, by reason of the failure of the defendant to perform the covenant on his part by furnishing the salt for transportation, and thus the plaintiff had been deprived of the profit he should have made from the contract; that of the salt which the plaintiff had received from the defendant for transportation, 605 barrels were lost by the staving and sinking of four boats, whereof he had offered to make satisfactory proof to the defendant, who refused to hear the same ; and that the residue of the salt he had received from the defendant, had been faithfully delivered, except -barrels, for which he was ready to credit the defendant at the rates fixed by the covenant. And then, averring that the plaintiff had in all things performed the covenant on his part, the declaration alleged the following breaches of the cove*130nant on the defendant’s part- — 1. that the defendant had not delivered, or permitted the plaintiff to receive, at Saltville, for transportation, from 1200 to 5000 barrels of salt, annually for the three years, and especially, that he had refused to deliver any salt during the third year of the term, though the plaintiff had elected to take 5000 barrels during that year, and gave notice thereof to the defendant ; 2. that the defendant had not appointed agents or consignees to receive the salt which was transported by the plaintiff, whereby he had been subjected to much expense, and to loss of time; and 3. that the defendant had failed to pay the plaintiff the freight of the salt which he had transported.

The defendant pleaded covenants performed, and covenants not broken ; on which issues were made up. And at a subsequent term (the same at which the issues were tried) he tendered “ pleas of set-off, which were objected to by the counsel for the plaintiff, and rejected *by the court.” The defendant did not file a bill of exceptions to the rejection of these pleas, nor were the pleas inserted in the record: but there was a memorandum at the end of the record, stating, that when the defendant tendered his plea of set-off, the court declared that no objection was perceived to the exhibition of the accounts shewing all the defendant’s claims to set-offs before the jury, and in point of fact, at a subsequent stage of the trial, his accounts of set-offs were submitted to the jury for their consideration in forming their verdict, except two items in one of them, which were the subject of one of the bills of exceptions filed by the defendant.

Many points arose at the trial and were decided by the court, and the defendant filed four bills of exceptions to opinions given against him: the last of them stated six several propositions, on which instructions of the court to the jury were asked, and instructions given or refused. But of these numerous and various points, this court decided but one (which was the main point in the cause) and that alone, therefore, is necessary to be here stated; namely, the first point stated in the defendant’s fourth bill of exceptions, which was this : The defendant moved the court to instruct the jury, “that according to the legal effect of the covenant, the defendant White had the right to elect what quantity of salt should be transported, not less than 1200 nor more than 5000 barrels, by the plaintiff, annually ; and that the plaintiff had no right to demand for transportation, more than 1200 barréis annuallywhich instruction the court refused to give, and the defendant excepted.

There was a verdict and judgment for the plaintiff for 4000 dollars, from which the defendant appealed to this court.

Johnson, for the appellant,

conceiving that the pleas of the set-off tendered by the defendant, and rejected by 'x'the court, and the accounts of particulars therewith filed, were made, by the memorandum respecting them, part of the record, and ought to have been inserted therein, to enable this court to judge whether those pleas were properly rejected by the circuit court or not, and suggesting a diminution of the record in that particular, asked a certiorari to bring up a full record.

*

For sequel of the principal case, see White v. Toncray, 5 Gratt. 179.

†

PIeading and Practice — Rejected Plea — When Part of Record. — pleas rejected by the court are not a part of the record unless made so by a bill of exceptions, or the express order of the court. As authority for this proposition, the principal case is cited with approval in Morrissett v. Com., 6 Gratt. 674 (see also, *foot-note*to this case); Colley v. Sheppard, 31 Gratt. 322; Lawrence v. Com., 86 Va. 579, 10 S. E. Rep. 840; Fry v. Leslie, 87 Va. 875, 12 S. E. Rep. 671; Sweeney V. Baker, 13 W. Va. 202, 212, 214; Hughes v. Frum, 41 W. Va. 452, 23 S. E. Rep. 607: Quesenberry v. People’s, etc., Ass’n, 44 W. Va. 519, 30 S. E. Rep. 75; *foot-note*to Bowyer v. Hewitt, 2 Gratt. 193; *foot-note*to Dickinson v. Dickinson, 25 Gratt. 321. See further, mono-graphic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

In Sweeney v. Baker, 13 W. Va. 212, the court, while approving the proposition laid down in the principal, case, said: “It is true Judge Tucker in his opinion in the case of *White v.*Toncray, 11 *Leigh*347, would seem to think, that a formal bill of exceptions was necessary, if the defendant wanted the rej ection of his plea reviewed. His reasons are, first, that the rejected plea may be identified', and second, that in the formal bill of exceptions the court might have an opportunity for assigning its reasons for the rejection of the plea. There seems to me but little force in either of these reasons. ** * * **If then there be no special reason in a particular case, why a rejected plea should not be ordered to be made a part of the record, and exception to its rejection be entered on the record book, I can see no reason why a court ought not to be permitted in its discretion so to do; or why it should be uselessly required in every case, to have a formal bill of exceptions written out and signed. And this is, I think, the decision in *White v. Toncray,*9 *Leigh*347, and the subsequent Virginia cases, and also in Hart v. B. & O. R. R. Co., 6 W. Va. 336.” In this same case, at p. 212, the principal case is distinguished. See *foot-note*to Herrington v. Harkins, 1 Rob. 591.

In this same case (Sweeney v. Baker, 13 W. Va. 202), the clerk copied at the end of the record a certificate signed by the judge statiDg that a demurrer had been filed and overruled by the court but that no entry of it had been made by the clerk. The record hook failed to show the filing of the demurrer at any time; and this memorandum of the judge was not referred to on the record book. It was held that the memorandum of the judge could not he considered as a part of the record in the case, though the clerk did certify that it was a transcript of a paper in the cause; the court citing the principal case, Morrissett’s Case, 6 Gratt. 673, Cunningham v. Mitchell, 4 Rand. 189, Bowyer v. Chesnut, 4 Leigh 1, Snydam v. Williamson, 20 How. (U. S.) 439, Young v. State, 23 Ohio St. 578, and Read v. Gardner, 17 Wall. 409, as its authority.

To the point that a paper which does not appear in the record to have been relied on, cannot he made a part of record by the clerk’s certificate, the prin*129cipal case, Cunningham v. Mitchell, 4 Rand. 187, and Roanoke, etc., Co. v. Karn, 80 Va. 589, were cited In Offtendinger v. Ford, 86 Va. 920, 12 S. E. Rep. 1.

In Mandeville v. Perry, 6 Call 83. Judge Tucker, speaking for the court, said: “The question is, what this court will consider as constituting the record of which it is to take notice in cases at common law? I answer the writ, for the purpose of amending by, if necessary. The whole pleadings between the parties. Papers of which a profert is made, or oyer demanded. And such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules, or in court, until the rendition of the judgment, constitute the record in common law suits, and are to be noticed by the court, andno others.” As approving this statement, the principal case was cited in Roanoke, etc., Co. v. Karn, 80 Va. 591; C. & O. R. Co. v. Sparrow, 98 Va. 637, 37 S. E. Rep. 302.

‡

Same — Same—Failure to Take Exception — Presumption in Appellate Court. — To the point that, if pleas be tendered by defendant and rejected by the court, and he takes no exception to the rejection of them, he shall be presumed in the appellate court to have acquiesced, the principal case was cited in Herrington v. Harkins, 1 Rob. 603 (see also, *foot-note*to this case); Fry v. Leslie, 87 Va. 275, 12 S. E. Rep. 671; Morrissett v. Com., 6 Gratt. 674; Hart v. B. *&*O. Ry. Co., 6 W. Va. 343; Thompson v. Boggs, 8 W. Va. 71; *foot-note*to Bowyer v. Hewitt, 2 Gratt. 193.

§Carriers. — See monographic *note*on “Common Carriers” appended to Farish v. Reigle, 11 Gratt 697.

TUCKJ3R, P.

I am of opinion, that a certiorari ought not to be awarded upon the matter suggested ; because, in the first place, I do not think that the pleas of set-off which were tendered by the defendant, and rejected by the court, are a part of the record ; and 2dly, if they were, yet as the defendant acquiesced in the rejection of them, and took no exception, he cannot now bring that matter in question before this court.

1. The pleas are not a part of the record. The record, we are told, is made up of “the writ (for the purpose of amending by, if necessary); the whole pleadings between the parties ; papers of which profert is made or oyer demañded, and such as have been specially submitted to the consideration of the court by a bill of exceptions, a demurrer to evidence, or a special verdict, or are inseparably connected with some paper or evidence so referred to. These, with the several proceedings at the rules, or in court, until the rendition of the judgment, constitute the record in common law suits, and are to be noticed by the court, and no others.” Mandeville v. Perry, 6 Call 78, 83. Now, the pleas which were tendered in this case, come within no part of this description. They constitute no part of the pleadings between the parties. The defendant desired to make them so, but the court, for good reasons doubtless, refused to permit them to be filed. They were of course not filed. Though placed among the papers by the party or the clerk, they were not filed, and were of course no part of the record. What function could *they perform? None. If it was designed to assign the rejection of them as error, the defendant should have filed his exceptions, and thus have identified the papers offered, and have made them part of the record, and afforded the court an opportunity of assigning the reasons of the rejection. He has not done this; he has not even had them so spread upon the record as to identify them. The certificate of the clerk cannot supply the defect; Cunningham v. Mitchell, 4 Rand. 189 ; Bowyer v. Chesnut, 4 Leigh 1. Indeed, they are not to be presumed to be among the papers, as they were rejected, and no exceptions were filed. The defendant not excepting, is taken to acquiesce ; and as the court refuses him leave to file his .plea, he may put it into his pocket. If he did so, could he be prosecuted for purloining a record ? I apprehend not ; for when his motion to file a plea is refused, the plea is still in his possession and control, and will so continue, unless he elects to compel the court to make it a part of the record, which he may do by bill of exceptions. This seems to me the true view of the matter. If the plea is received, it becomes part of the record at once, by the voluntary act of the court. If the court refuses it a place among the records, which is the effect of the rejection, the defendant may then require it to be made a part of the record by bill of exceptions ; or the court may by its order identify *131•the paper, and set forth upon the order book the reasons of its refusal to receive it.

This brings me to remark, 2. that even if the pleas had been spread upon the record, and constituted a part of it, this court must take it that they were properly rejected, as the defendant did not except. His acquiescence in the rejection must he presumed; and as it is possible there may have been good reason for the rejection, that reason must be taken to have existed, as he did not call upon the court to sign a bill of exceptions, in which its reasons would have been stated. A *contrary practice would lead to absurdity and mischief. If a continuance is refused, or a motion for a new trial overruled, the court must load the record with its reasons, though the party does not except. This would be contrary to reason, and is at war with well established principles and practice. The rejection, then, in this case, must be taken to be right ; and if so, for what purpose have the pleas inserted in the record ? I see no use of them, which would avail the defendant, and I therefore do not think the cause should be delayed for that which (if a part of the record at all) is an unimportant part of it, in relation to the questions before this court.

It may also be remarked, that if a bill of exceptions had been filed in the present case, and had merely stated the fact of the rejection of the pleas, without shewing any reason for the delay in not offering them sooner, this court, under the authority of the case of Martin v. Anderson, 6 Rand. 19, must have affirmed the judgment rejecting the plea.

The other judges concurred. Certiorari denied.

The cause was then argued on its merits, by Johnson for the appellant, and Stanard for the appellee.

TUCKER, P.

This is an action of covenant upon a contract between a salt manufacturer and a carrier, for the carriage of a quantity of salt. By the contract, Toncray agreed to transport for White, from 1200 to 5000 barrels of salt, annually, for three years. The carrier contends, that, by this provision, he was entitled to demand that the manufacturer should deliver to him, or have ready for delivery, each year, the full quantity of 5000 barrels, or such quantity between 1200 and 5000 as he might elect. The defendant White denies Toncray’s right of election, and on the trial of the cause, *move<l the court to instruct the jury, that he, and not the plaintiff, had the right of election. The court refused the instruction, and, in effect, gave the opinion to the jury, that the plaintiff had the right of election.

It is sufficiently obvious, as was said at the bar, that the right of election cannot exist in both parties, since the exercise of the right would, in that case, be conflicting. It is also clear, that as a broad latitude is allowed as to quantity, there must he in one or other of the parties the right to fix the quantity to be delivered for transportation. To which of the parties did that right belong ? I answer, to the manufacturer.

This will be abundantly clear, whether we proceed upon technical principles, or upon the reason and nature of the contract. According to well established principles, the words here, being the words of the carrier, are to be taken most strongly against him. And what, then, is their meaning ? He agrees to transport from 1200 to 5000 barrels : the quantum is not fixed : but it must be fixed. To allow him to fix it, would be to take the words most strongly in his favour. He cannot, therefore, have the privilege ; and as one or the other must have it, the defendant must have it. Indeed, I consider the agreement to transport for White from 1200 to 5000 barrels, as being equivalent to an agreement to transport any quantity between 1200 and 5000 ; not any quantity the plaintiff or covenantor might name, but any quantity that the other party might name. Eor, if the carrier could name the quantity, the contract would in fact not bind him farther than the 1200 barrels ; for he cannot be said to be bound, who has an election to do or not to do the act. So that though he expressly binds himself to transport any quantity within the named limits, he could absolve himself therefrom by electing to transport a single bushel more than 1200 barrels. This would be a total perversion of the .rule of law.

*1 am persuaded, however,' that this matter is rather to be decided upon a just attention to the objects and design of the parties, than upon any technical rule whatsoever. It may be difficult to evolve the true principle which should govern such cases : but I will venture the suggestion, that, in general, where a latitude is given in contracts of this description, the right to fix the quantum must depend upon the question, — what is the principal motive to the contract ? and he whose concern constitutes that motive, must have the election in preference to the other party. Thus in a contract for the transportation to the market, of salt, or wheat, or flour, or coal, or other merchandise, the primary and moving consideration of the contract, is the getting the article to the place of sale. The carriage is secondary and dependant. The manufacturers have no idea of doing more than send their own articles. It does not enter into their conception, that they are to look about them, and, if their own stock falls short, to make up the deficiency aliunde. An engagement of this character is not made with a view of compelling the manufacturer to furnish employment for a certain number of wagons or boats, but, on the other hand, to bind the carrier to furnish adequate transportation for a quantity, more or less, of produce that is going to market. Who would ever think oí binding himself to employ carriers, when he had nothing to transport? or more carriage than would be necessary for his transportation ? No one. Hence it is, that in such contracts, a certain amount is first fixed, and then a latitude is given beyond it to some definite limit. This latitude, in the nature of the thing, is inserted for the benefit of him who has the articles for transportation. How absurd would it be to give to the carrier the power of compellin g the employer to pay for more carriage when *132he had nothing more to carry ! The same principles prevail in other cases. If a brick-maker engages with a builder, to burn for him from * **§500,000 to 800,000 bricks, it is obvious, that the latitude is given because the builder may want more than 500,000, and perhaps not so many as 800,000. His wants constitute the true gauge, and he-is the person to judge of them. So, if a man offers to build from five to t'en houses for another, the employer must of necessity have a control over the number to be built, since it cannot be supposed that he builds merely to furnish employment to workmen. He builds to meet his own wants, and they are the measure of extent to which he is willing to be bound. With the workman it is otherwise, as he can usually expand or contract his operations with comparative facility.

I do not think it necessary to say any thing on the other points presented by the bills of exceptions. I am of opinion, that the judgment should be reversed, and the cause sent back for a new trial, at which the first instruction asked by the defendant and stated in his fourth bill of exceptions, should be given by the court to the jury, if again required.

The other judges concurred. Judgment reversed, and cause sent back for a new trial.