#### JOHN WADDELL *vs.*ABRAHAM REDDICK.

When in a contract no particulai time for doing an act is specified, the general principle is, that it must be done in convenient time, to be judged of by the court, according to the circumstances and situation of the parties, unless that be in some respect modified by the terms of the oontract.

Where A contracted to deliver cotton grown on his plantation in Florida, “ as soon as it could be picked out and shipped,” *Held,*that he was not thereby restricted to the shortest possible time, in which, by any means or upon any terms, he could convey the cotton

' to a sea-port, but that he was only bound to employ the usual mode of transportation, and,- therefore, had a right to wait a-reasonable timé to avail himself of that mode.

Appeal from the Superior Court of. Hertford county, at Spring Term, 1842, his Honor Judge Manly presiding.

This was an action of assumpsit. The plaintiff declared upon the following agreement:

“ October 9th, 1839.

I have bought of John Waddell, one hundred bales of cotton of the present crop (1839) on his plantation in West Florida, to be delivered to Charles and George Reed in Norfolk. The said Waddell is to pay the freight. The cotton to be delivered as soon as it can be picked out and ’shipped. For which I am to pay twelve and an half cents per pound, at one, two and three months from the delivery.

A. REDDICK.”

He then proved by *Charles*Reed, of the firm of C, & G. Reed referred to in the contract, that on the first day ot May, 1840, a lot of cotton, consisting of 100 bales, arrived at the port of Norfolk, consigned to C. & G. Reed by Charles Ro*425gers of Appalachicola for account of Waddell, Southall & Co., and on the same day, John Waddell, the plaintiff, tendered to them the said lot of cotton for account of Abraham Reddick, the defendant, which they, by the instructions of Reddick, refused to receive; and the cotton was then left with them to be sold for Waddell’s account, and was accordingly sold — that they received a letter from the defendant on the 26th of February, 1840, dated the 25th of that month, directing them not to receive the cotton before referred to, should it arrive — that Reddick was informed of the sale about to be made by them of the cotton ón Waddell’s account, and that he would be held responsible by the plaintiff for any deficiency. The plaintiff proved by *James Williams*that he was the manager for the firm of Waddell, Southall & Co. in Florida, in Í839 — .that the wafer courses in Florida continued low through the winter of 1839-40, and did not become navigable until about the 1st of March, 1840 — that the cotton raised in the section of country in which this farm is, is sent down the Chippola to market— that by hauling it 35 or 40 miles, it can be sent to Brown’s ferry, whence it can be sent down the Appalachicola and Chattahoochee rivers; but these last mentioned rivers were not navigable for boats earlier than the time stated, at which the Chippola river became navigable — that he attended to the shipping at Mariana' on Chippola river to Appalachicola of the cotton sold by the plaintiff to the defendant — that the cotton was shipped early in March, 1840 — that the cotton was a part of the crop of 1839, the greater part of it was of that which was first picked out and was the best of the crop, it being all of good quality — that it was sent down the Chip-pola as soon as that river or any other in West Florida became navigable that year — that he used more than ordinary pains to have the cotton forwarded by the earliest day, and paid a higher freight than was usual in order to expedite it, and that from the situation of the river it was forwarded as early as could possibly be done — that from the farm before spoken of, it is 80 or 90 miles to Appalachicola, the port from which cotton raised in the section of the country in which this farm is situated, is shipped to other ports of the *426United States — that-be has never known cotton to be hauled over ^nn<^ ^rcm ^at sect'on °f the country to Appalachicola or any other sea-port for shipment. The plaintiff then prove(j ^y *Charles Rogers,*that the water courses in Florida in the winter of 1839--40, continued low very late, in consequence of which the crop of 1839 was greatly retarded in coming to market — that *the cotton in controversy in*this suit,- as appears by the date of the bill of lading, was shipped from Mariana the 18th of March, 1840, arrived at Ap-palachicola the 28th of that month,-and was placed on board a vessel the 11th of April, and a bill of lading taken that day,, and the vessel was ready for sea the 15th of April— that under the direction of Southall & Co. he re-shipped the cotton With as little-delay as possible, and, to that end, he paid a higher freight than was usual. The defendant then proved by *Reed,*the witness before examined, that in a conversation between him (the defendant)'' and the plaintiff, in relation to the cotton, which- the plaintiff had-sold the defendant, the plaintiff said the cotton would arrive at Norfolk as early as the month of January, 1840. The defendant then read in evidence a letter from the plaintiff addressed to the defendant, dated Jackson county, West Florida, Dec.25th, 1839, of which *the following*extract'is the only part relating to this controversy: “ The only obstacle, which now remains in the way of shipping the cotton that I contracted to-deliver you-, is the low state of the water-coiirses. The Chippola, the only avenue for getting our produce to market, is as yet too low for that'purpose.- There being no >essels that sail directly from Appalachicola or St. Joseph to Norfolk, f shall have necessarily to ship it by way of New York.”

It was insisted on the part of the defendant that the plaintiff. could not' recever, for that 1st, it was not proved that the cotton, which was tendered to Messrs:- C. and G. Reed, of Norfolk, and’by them refused, was the cotton of the plaintiff: 2dly, that nothing But an actual performance of the contract on the part of the plaintiff, according to the terms of the contract, would enable-him to recover- — that an inability to perform the contract by the act of God would not excuse performance. — that, if tfie streams of Florida which were *427usually navigable failed him, as he had made no reservation in .the contract, by which he was authorized to delay the delivery until he could avail himself of them for that purpose, he should have resorted to land carriage to get his cotton to a shipping port.

His Honor instructed the jury upon the first point, .that, if the plaintiff had an interest in the farm upon which the cotton was grown, though others might own it in common ■o.r as co-partners with him, it was a substantial compliance ytith that part of his contract. Secondly, that the plaintiff was bound to send the cotton by any oí the ordinary avenues that were used for transporting cotton, that was raised in that section of the country, to a port to be re-shipped to other ports of the United States; and if the plaintiff used reasonable diligence in getting itto the port of delivery in this way, he had performed his part of the contract — that he was not bound toresort toland carriage, in order to ship it as soon as any exertion of physical power would enable him.

There was a verdict for the plaintiff; a new trial was moved for and refused, and judgment rendered for the plaintiff; from which judgment the defendant appealed.

*Kinney*and *Iredell*for the plaintiff.

*Badger*and *A. Moore*for ¡the defendant.

Ruffin, C. J.

We have but little doubt, that, in putting a construction op this contract, his Honor received it in the same sense, in which the parties themselves understood each other, when they bargained. And that we conceive to be the true principle of interpretation for mercantile, and, indeed, all other agreements.

Rut it is said, first, for the defendant,, that the cotton delivered was not that contracted for., as it.did not grow on a plantation owned by the plaintiff, but grew .on one owned by him and others. We admit .the.defendant was not bound to accept 100 bales of cotton made any where in Florida. It may have been his interest in reference to the quality of the article, or, in other respects, to have the quantity bought by him taken out of a particular crop. The plaintiff was, *428therefore, under an obligation to send the cotton from the plantation which the parties call “his plantation,” in the contract; and, the question is, which was that? There seems no difficulty in ascertaining that. We find the plain- ■ tiff cultivating one plantation; and from that the cotton in question was sent; and no doubt that, and that alone, was in his view at the time. It is true that he was cultivating it in conjunction with others; but that would not, for any purpose of the transaction between the parties, prevent its being called “ his plantation.” If the defendant had shewn that the plaintiff owned, or was interested in any other plantation, or that he had said so, or that the defendant had any reason to believe so, it might be supposed the defendant did not understand this to be the crop out of which he was to be supplied. But, in the absence of all such evidence, one mus.t believe that each party had in view 100 bales of this .very crop; and, therefore, that this was *his,*the plaintiff's, plantation, within the sense of the contract. There is no other, to which either party could have referred.'

With respect to the time of delivery, the objection of the defendant seems to be equally captious and untenable. It assumes that the plaintiff is endeavoring to excuse himself for the non-performance by himself of some part of th.e contract, upon the ground of his inability having arisen from the act of God; and then it proceeds to assert that the plaim tiff is not thereby excused for want of a provision in the agreement to meet the event that happened. But the point assumed cannot be yielded: indeed it is the very point in this cause. Before we consider whether the plaintiff has excused, or could excuse himself, for not performing th.e contract on his part, it is first to be ascertained what he did contract to do. Now, it is important, as to that, to see, ip the first place, that he did not agree to make the delivery on or before any particular day. If he had, he would have taken on himself all risks by land or on water. If no time for doing an act be specified, then the general principle is, that it must be done in convenient time, to be judged of by the court, according to the circumstances and situation of the parties, unless that be, in some respect, modified by the terms *429of the contract. Here, the delivery was to be made in Norfolk as soon as the cotton could be picked ont and shipped. What was the period thus designated, as understood by the parties? Let the sentence be divided, and the question first considered upon the words, “ as soon as it *can*be picked out.’V<It has not been argued, even, that those words mean, “ as soon as it can *possibly*and *by any tivmber oj hands*be picked.” The language might be absurdly strained to that sense: but no such tiling was meant. We have seen that the parties were contracting respecting part of a crop made on a certain plantation, and, when they speak of a thing to be done when that crop can be picked ont, they refer to the time, in which it will or may with ordinary diligence be picked out by the hands belonging to the plantation, and not by any, the largest number, which the proprietor could employ. In other words, the picking was to be in convenient season, according to the usual operations of agriculture. In like manner of the other' word of the sentence, “ shipped.” It follows *“*picked out” and is to be understood in the same sense. The plaintiff was not thereby restricted to the shortest possible time, in which, by any means, or upon any terms, he could convey the cotton to a sea-port; but, upon the principle already mentioned, he was expected to employ the usual mode of transportation, and, therefore, had a right to wait a reasonable time for an opportunity of availing himself of that mode. In fine, he had convenient time for shipping as well as for picking his cotton.

Now, we think the plaintiff is under no necessity to offer an excuse for any omission on his part, for there was no such omission. The declaration truly states, that the plaintiff delivered the cotton as soon as it could be picked out and shipped, that is to say, in the true sense of the contract. For the plaintiff adopted not only the usual,but the universal mode of conveyance employed in his part of the country; and he did so as early as he could, and at an extraordinary expense. We see no reason, therefore, why the defendant was not obliged to accept the cotton tendered, and consequently, the verdict and judgment were right.

Per Curiam, Judgment affirmed.