
    Caledonia County,
    March Term, 1826.
    
      Henry Stevens vs. J. & E. Chamberlin.
    
    If by tha terms of a contract successive acts-are required to be performed within limited periods, the several days on'which the performance is alleged, if within the respective periods limited by the contract are not material. And though the order of performance in point of tinrvg should seem to be inverted, yet if the time is laid under a videlicet and with .express reference to the periods limited by the contract, there is no repugnancy.
    In declaring upon a contract payable in such goods on demand as the plaintiff should want, it is not sufficient to aver a general demand of goods; but it should appear that the plaintiff designated the goods which ho wanted, or else that he expressly waived his right to select and gave the defendant notice of the waiver.
    Where part of an entire sum due upon a sealed agreement is payable by instal-ments at fixed periods, and the residue in specific articles on demand, cove-, nant will lie for the instalments before a demand Is made of the specific articles.
    This was an action of covenant upon a sealed agreement whereby the plaintiff had undertaken on his part, within three months from the date of the contract, (which was early in February) to deliver upon the banks of Connecticut and Passwmic rivers at places designated, a large quantity of timber of certain descriptions ; and as soon as the ice should be dissolved, to float the same down said rivers to the foot of Dodge’s Falls and there deliver it to the defendants, at certain prices fixed by the contract. The quantity and quality of the timber was to be ascertained by surveyors before it was floated. He was also, at the same time, to deliver to the defendants three hundred thousand shingles of different denominations, at prices also fixed by the contract. The defendants were to make payment by certain instalments, all payable in money at stated times, except one for a fifth part of the whole price of the timber and shingles, which was payable in such goods at cash price as the plaintiff should want, on demand after the timber and shingles were delivered.
    The declaration alleged the delivery of the requisite quantity of timber on the banks of the rivers aforesaid at the places designated, and a survey thereof, “within three months from the date of said contract, to wit, on the first day of May,” &c. It also alleged that “as soon as the ice was dissolved in said rivers, to wit, on the tenth day of April,” fee. he floated said timber to the foot of Dodge’s Falls and there delivered the same to the defendants. It was further alleged that the plaintiff delivered to the defendants three hundred thousand shingles of the descriptions required by the contract, and that the defendants accepted and received of the plaintiff different parcels of said shingles to the amount'of one hundred and twenty thousand, in full satisfaction for the whole three hundred thousand. The breach of the covenant on the part of the defendants was alleged to the following effect — “that they had never paid the plaintiff the value of said timber and shingles, in money and goods according to the contract aforesaid, though often thereto requested, and particularly at Barnet aforesaid upon die delivery of said timber and shingles as aforesaid.” Tire defendants demurred specially to the declaration, assigning as causes of demurrer,
    1. That the declaration was repugnant and contradictory, in aVéripg that the timber .was floated to the foot of Dodge’s Falls On the 10th day of April, tv-hen it appeared to have been delivered On the banks of the rivérs on the first of May following.
    2. That it was also repugnant in alleging that the three hundred thousand shingles were delivered, and that the plaintiff at the same time received but one hundred and twenty thousand iii satisfaction for the whole.
    3. That the breach was not well assigned, because it did not appear drat the defendant ever designated the goods which he wanted.
    The demurrer was now- argued by Bizrbank and Fadd,ode for the defendants, and by Fletcher for the plaintiff.
   Royen, J.

delivered the opinion of the court.

This case GOtnes before the court upon a special demurrer to thé declaration. To enable die plaintiff to recover upon the contract set forth, it was necessary that he should have performed it On his part, as such performance is undoubtedly a condition precedent to any liability on die part of the defendant's. The manner in'whieh this performance is alleged makes the first objection to the 'declaration. It is contended that the declaration is repugnant and contradictory, in avering,the timber to have been floated down the rivers named in the agreement to the place of ultimate delivery, before it was placed upon lire banks of those rivers where, the survey and intermediate delivery were to take place. The averments as to the time of;'delivering the timber on the banks, and of floating the same to'the place of final delivery, must be construed with reference to the terms of the contract. This required that the timber should be delivered on the banks within three months from the date of the contract, and that it sliould be floated to the foot of 'Dodgers Falls as soon as the ice was dissolved. It is accordingly alleged that the timber was delivered within the three months, to wit, on the 1st day of May; and that it was floated as s.oon as the ice was dissolved, to wit, on the tenth day of April. The day on which either of these events is alleged to. have happened, especially when laid under a videlicet,is not material,.provided it is within the time limited by the contract. It.may therefore be understood, jf necessary, that the timber was delivered on the banks before-the 10th day of April, but the delivery not alleged till, the first -day of May because the latter date, being witlfin three months, satisfies the contract; or that it was not floated till after the first day of May, but as soon as the ice was dissolved, which equally satisfies the contract. The seeming repugnancy in this particular is therefore of no importance,' since each event is alleged in conformity to the agreement.

The next objection to the alleged performance on the part of the plaintiff is, that though die requisite quantity of shingles is avered to have been delivered to the defendants, yet a lesser quantity is said to have been received by diem in satisfaction for die. whole. Were die acceptance of the smaller quantity the only performance alleged, there might be a ground for this objection, on the principle tiiat an acceptance of part could be no satisfaction for the whole. In tiiat case it should appear that the defendants expressly discharged the plaintiff from any further delivery or performance. But the contract in this instance was satisfied by the delivery alone ; and what is said of die subsequent acceptance by the defendants is not repugnancy but surplusage.

The remaining objection arises from the manner in which the demand of payment is set forth. This objection concerns only that portion of the debt which' was paya-in goods, no demand being necessary in respect to the other instalments. It is not to be collected from the declaration that any actual demand of payment was made but ■once, and that at the final delivery of the property sold. This demand does not appear to have been well-made. It was at most but a general demand on the defendants to pay in goods, without any designation of such particular goods as the plaintiff wanted. It was necessary for the plaintiff either to designate and elect, or explicitly to waive the right and authorise the defendants to deliver such goods as suited their convenience. Without this the defendants could not be subjected for omitting any attempt to fulfil this part of their contract. This defect, however, does not prevent the plaintiff from recovering according to the right which has become perfected. The failure of the defendants to pay the other portions of the debt is not excused by any thing appearing on the record. We therefore adjudge for [the plaintiff, and allow him to assess his damages, except for a fifth part of his demand which was payable in goods.

Burbank and Paddock, for defendants.

Fletcher, for plaintiff.

Prentiss, J. having been counsel in the cause did not sit at the trial.  