Muslow v. Charles B. Varney Co.
Supreme Court of New Hampshire
Assumpsit, to recover damages for failure to deliver a carload of flour. Trial by jury and verdict for the defendant. The evidence tended to prove the following facts: As parts of a single transaction, the defendant’s agent sold the plaintiff two carloads of flour, one for immediate delivery and the other to be “ordered out” by the plaintiff within 60 days. The orders were sent to the defendant, and it returned to the plaintiff two written memoranda of the transaction.
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Assumpsit, to recover damages for failure to deliver a carload of flour. Trial by jury and verdict for the defendant. The evidence tended to prove the following facts: As parts of a single transaction, the defendant’s agent sold the plaintiff two carloads of flour, one for immediate delivery and the other to be “ordered out” by the plaintiff within 60 days. The orders were sent to the defendant, and it returned to the plaintiff two written memoranda of the transaction. These were marked “first car” and “second car,” and except as to time for delivery were otherwise identical. One condition…
1Opinion of the CourtPeaslee, J.
It is admitted that there was sufficient evidence of a breach of contract by the plaintiff. He did not order out the second car within the agreed time. But it is insisted that the defence is not open here because the defendant is estopped to set it up. This claim is based upon a letter written by the defendant to counsel for the plaintiff in which another breach is stated as the cause for a refusal to deliver the second car. If this letter could be treated as the foundation for an estoppel which would bar all other defences and permit the plaintiff to repover as though they did not exist,…
2Cited by1 opinion
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