
    Henry Bolton and another v. John Riddle and another.
    
      Contracts: Delivery on rail of vessels: Vessels to be famished by vendees: Reasonable time: Cost of loading. Under a contract to cut during the winter of 1871-2 a quantity of cedar posts and to deliver them on the rail of vessels to be furnished by the vendees, at a specified price, it is held the purchasers were bound to furnish vessels within a reasonable time during the season of 1872; and that where vessels were not furnished * until 1874 the purchasers were not entitled, in the absence of any new arrangement, in an action brought against them to recover the purchase price of the posts received by them, to deduct the cost of taking the posts from the beach, where the vendors had delivered them for shipping, and placing them on the rail of the vessel.
    
      Evidence: Practice: The rejection of evidence which was inadmissible at the time it was offered, for want of evidence laying a foundation for it, is not made erroneous by the subsequent introduction of the required evidence, where the rejected evidence is not again offered and ruled out after the foundation has been properly laid.
    
      
      Charge to the jury: Evidence. The fact that the question to which the evidence related, the rejection of whicn is complained of, was submitted to the jury by a charge to which no exception was taken, will not affect the previous ruling rejecting the evidence; for aught that appears, subsequent evidence may have called for such a charge.
    
      Submitted on briefs June 21.
    
    
      Decided October 13.
    
    Error to Alpena circuit.
    
      JR. J. Kelly, for plaintiffs in error.
    
      J. D. Holmes, for defendants in error.
   *Cool:ey, Ch. J.:

The defendants in error contracted with plaintiffs in error to cut, during the winter of lS^l^, 15,000, and not to exceed 20,000, cedar posts, and to deliver them on the rail of vessels to be furnished by the plaintiffs in error, for the price of seven cents each. The posts were cut and placed on the beach, but vessels were not furnished for shipping them until 1874. Such as were then taken by plaintiffs in error, they delivered on the vessel at their own expense.

In an action to recover the price of the posts, plaintiffs in error claimed that they were entitled to deduct the cost of taking the posts from the beach and placing them on the rail of the vessel. The circuit judge held that the purchasers were bound to furnish vessels within a reasonable time during the season of 1872, and that failing in this, they could not Require the sellers to deliver the posts on board of vessels afterwards. We think the court was right in this ruling unless there was something in the evidence tending to show an alteration in the original arrangement, or that the sellers assented to the delay in furnishing vessels.

There was evidence of a new arrangement made between the parties after the year 1872, and plaintiffs in error offered to show what it cost them and what it was worth to load the posts when they shipped them in 1874. But at the time of offering that evidence we do not find that they had in any way laid the foundation for it by showing facts which would entitle them to charge the sellers with this expense. If they had not, the evidence, as the court held, was irrelevant. It may have been made relevant by evidence subsequently given, but this would not render the previous rejection erroneous.

It is said that the circuit judge, notwithstanding the rejection of this evidence, submitted the question to which it related to the jury. The charge, as reported to us, is a little blind, and it is not clear that the fact was as is alleged, *but if it were so, ,it would not affect the previous ruling. Possibly subsequent evidence might have called for such a charge; if not, exception should have been taken to it. We do not find that any exception covers this point.

The judgment must be affirmed, with costs

The other justices concurred.  