Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1881-12-17

he plaintiff would have been bound Il
,y it, but he did nat read II, and con- Y
the plaintiff was not hound j
0y the limitations it contained" II
The action OF the court in striking a
out the following words in defen-
iant's answer is also assigned for
error; viz: "That the cars were pre-
vented from arriving at Lexington at
The time plaintiff wished them by all
accident and delay"
The contract sued upon by plaintif
was all unconditional agreement on
part to furnish cars on II
day certain for the purpose of SHIP
ping on that day 1874 head OF cattle.
Where party by contract agrees TO
do prescribed thing in prescribed
time he is liable for non-pertormance
of the contract, notwithstanding the
fact that his non-fuitililaent Of the
contract was occasIoned by inevitable
and unavoidable accident. This Is an
ancient rule OF the law, and was thus
laid down more than two hundred
years ago in the case OF Paradlne vs..
Jane Aieyns, Rept. p. rs. q Term
Rept. 267,) when plaintiff had sued
defendant upon lease for years,
rendering rent at the four usual feasts;
aud for rent behind and due for three
years. The defendant pleaded that
Rupert, u certain German prince, an
alien born, an enemy to the King and
kingdom had invaded the realm with
All hostile army of men, and with the
same did enter upon defendants pos
session and expelled him therefrom
for three years so that he could not
take the profits of the same. Ihls
plea on demurrer was held insufti-
cient, it being observed "that when
party by his own contract creates
duty or charge upon himself, he is
bound to make it good. notWith-
standing any accident by inevitable
necessity, because he might have pro-
vided against il by his contract
The rule is stated thus by Hutch
inson OH Carriers. sec. 317, "lf the
carrier has agreed to carry the goods
to their destination and then deliver
them within a prescribed time he
will be held to strict performance
of his conti act, and no temporary OBJ
struction or even absolute impossl-
bility will be defense for failure to
comply with the engagement, for
when q party by his own contract
creates duty which he engages TO
perform be is bound to make il good.
Notwithstanding an accident or delay
by inevitable necessity, because he
might have provided against it by his
contract; and this rule applies not
only 10 the engagement OF carriers
but TO the contracts of all persOns."
Mr.. Angel OH Carriers iu sec. 294 ,in
speaking of contracts express as TO
time prescribed in " hich thing is to
: be done, says: "But the principles
Of law III respect to the obligation o1
carrier to deliver goods in reason.
D able time, depending upon circum
: stances, though they apply. as in the
) foregoing cases, to implied contracts
will not apply to all express contrac
!. to deliver iu a prescribed time.
In the latter case no temporary OBJ
8 struction or even the absolute im
s possibility Of complying with the Ell
gagement, will be u defense to all &C
e ton for failure in performing th
contract.
!, The same principle is euunciated il
e the following cases: Plase VS.. Unio
Express Co.,2 Hilton r. SO /; Atkinson
IT We. Richie, 10 East $50; Dening vi
'e Railroad. 4S, N. H. 455; Spense VI
II Chadwick, vol. XII. pt. l, Jurist,
n S72; Hodly VS.. Cisrk, 8 Tenn. Rep
Al 259; Parmelee VS.. Wilks, %. Barb. So!
'r Harmony va. Bingham ct al, 2 Kel
70 nan 80.
II In the last case cited it was hel
Y that where party had agreed to tram
port goods from New York to Indt
er penoence Missouri within 26 day
9, aud failed to accomplish it in tbs
In time; THAT the fact that u publ
le canal on which the goods were il
~ tended TO be transported part OF I'll
y, distance was rendered impossible
nj an unusual freshet aud that this o
rs casioned the detention was not leg
excuse therefor"
III The case was tried by the tri
OF court in strict conformity TO ii
p above theory of the case and the cou
or in the reception and rejection of ev
K dence, aud in giving aud refusing i
d. structions gave application to Il
z: above principles, and we deem it u
Ell necessary to cay anything more
US the seven instructions given for plai
ne tiff, and the sixteen asked by defe
III iant and refused, than that the
;ts which were given were III strict hs
IRE mony with the principles herein a
hg nounced as sustaining the action
the trial court in striking out t
Ter various parts of defendants anew
up already adverted to, aud that tho
III which were refused asserted p.in
ne piles antagonistic to them.
oe A more particular reference
ase these instructions except such ss q
II. hereinafter adverted to, would or
cid involve repetition of what has
ng ready been said in regard to the pl
lh- priety OF the action of the court
The sustaining the motion OF plaintiff
III strike out various parts of detendan
III answer.
DAD During the trial defendant offer
e. in evidence the written contracts I
lar tered iuto on the evening of the II
ore of June, in reference to the shipm,
ole Of plaintiffs cattle, aud asked
zee, court to give certain instructio
ach telling the jury that the verbal G.
Ia tract for furnishing cars on tn, q
on OF June, was merged III SAID writ
nea contracts, and that plaintiff was
hce entitled to recover.
@ ,e, These Instructions, we thiuk, W
"'N properly refused on the ground t
the breach of the verbal contract
@ casioning the damage for which pls
Nv a;a tiff sues had occurred before s
o,o written contracts were entered il
,a, a,si there is nothing in said contrs
''' which amounts either to = release
:, :. defendant from liability arising Fl
~ ~ such breach, nor is there any thing
@ them indicating that such was the
I ,n", tention, or that plaintiff waived
'na' 10 right which had already accrued.
,wn The contracts related entirely to
future and not TO the past. In the c
med nf Cleveland vs.. Toledo Il. II. Co.
,hc Mich, 296, where cattle had been
Give hvered to the company for immed
.on- shipment, aud when written c
rent tract was entered into two days
ANY terward for their shipment in an
ling ton for damages for umreasons
.deI delay, il was he'd Cooley, q. j.,
om- livering the "plnion, "that the W
liza. ten contract would be the Ineasur
t OF, the obligation II the parties fl
,ugh the time it was giver, but tha
I, in would not merge any liability
,ust company might nave incurred by
the reasonable delay previously. there
re- of i"g nothing in the contract To j
: he. cate such al Intention"
:iple The instructions might inasm
au- as these contracts were not set U
ll3; Leteulnnts answer also have |
ruilt refused on the authority of the
MO nf NSrtl,rDn at al vs. Missi 4 3