
    JONES ET AL vs. SMALLEY.
    
      December, 1832.
    APPEAL PROM THE COURT OP THE FIRST DISTRICT.
    By the common law, when the plaintiff’s right of recovery depends on, and arises from an act to be done by him, he must either show an actual tender and refusal, or that every thing has been done by him which could be done to carry the contract into effect.
    
      Notice in the newspapers is not sufficient, unless a knowledge of that notice be brought home to the party.
    Whether, when the party is in the place, personal notice is not necessary. Query?
    
    
      The plaintiffs must show that they were ready and willing up to the last moment given for the performance of the contract, to do every thing required of them.
    This was an action to recover damages for an alleged breach of the following contract:
    “ We, the undersigned, agree to ship with the steamboat Samson, fifty head of horses by the first trip, at fifteen dollars per head, with all the grain in barrels that we may wish to put in, and a reasonable quantity of packed hay: To pay customary freight on any that remains on their arrival at their place of destination,” &c. &c.
    
      The plaintiffs, with whom the contract was made, were the owners of the boat, and alleged in their petition, that _ m consequence of this agreement, they were put to great expense in fitting the hulk of the Hercules, as well as fixing the steamboat Samson for the transportation of the horses; and that they were prepared to receive them on board and transport them as agreed on, of which the defendant was duly notified, but failed to comply with his part of the agreement.
    The defendant, among other matters of defence, denied notice of the departure of the boat; and the evidence on this point showed, that the time of the departure of the boat was made known by the usual notices in the public journals, and by putting up bills at the hotels; but nothing showed that a knowledge of these notices were brought home to the defendant, or that personal notice was given. There was judgment for defendant in the court below, and the plaintiffs appealed.
    Worthington, for appellants, made the following points:
    1. We contend that the facts exhibited in this case, are sufficient to entitle us to recover without showing a direct personal notice.
    2. The laws of Ohio control this case, the contract having been entered into in that state. 1 La. Rep. 254, 534. 2 Hid, 115.
    3. In the absence of evidence, the court will not presume the existence of a rigid technical rule, but will decide upon the circumstances of a case agreeably to the principles of reason and the ordinary rules of justice. The court will notice the rules of the common law as derived from treatises and reports. 1 La. Rep. 255. 3 Blackstone,s Com. 336.
    Schmidt, for appellee, made the following points:
    The judgment of the District Court is correct, and should be affirmed:
    L Becausetheappellantshavenotshownthattheyassented ■ tó, or accepted of the contract sued on. La. Code, arts. i 1759,1761, 1791, 1805, 6, 7, 8, &c.
    2. Because the defendants and appellees were never legally put in default or mora, or even notified of plaintiffs’ intention to depart. La. Code, arts. 1905,1907. Code of Practice, art. 13. Wilbor vs. Me Gillicuddy, 3 Miller, 382. Kohn and Bor-dier vs. Packard, ibid, 228.
    3. Because no damages have been proved. La. Code, arts. 1920,1921,1927,1928, &c.
   Pouter, J.,

delivered the opinion of the court.

The petition states, that the plaintiffs are owners of a steamboat called the Samson, and that the defendant agreed at Cincinnati, in the state of Ohio, to ship fifty horses on board of her, to be transported to New-Orleans, at the rate of fifteen dollars each, and that he signed an agreement to that effect.

It further avers, that plaintiffs were put to considerable expense in making the alterations and arrangements on board the boat necessary to receive the horses; that the defendant was notified of the time of her departure, and of the readiness of the plaintiffs to receive them on board; and it concludes by averring damages to the amount of seven hundred and fifty dollars, sustained by the petitioners, in consequence of the breach of the contract.

The answer sets up various grounds of defence, and the argument at the bar embraced all the points at issue. We have directed our principal attention to one of them, being of opinion it decides the case.

It was contested whether the rules of the common law, or those of Louisiana, should regulate the contract. We shall take the former, as the plaintiffs insisted we ought; because even by them, we do not think they have made out a case which entitles them to recover.

By the agreement, the horses were to be shipped by the first trip of the boat. The departure, owing to ice in the river, was delayed for six weeks. The contract not having fixed a ■ particular day for the performance, notice of the time the boat was ready to receive the horses, was necessary. Notice is accordingly averred in the petition, but in our opinion, the evidence does not support the allegation in such a manner as to bring the case within the rules of law which govern it.

By the common law, when the plaintiff’s right of recovery depends on,and arises from an act to be done by him,he must either show an actual tender and refusal, or that every thing has been done by him which could be done to carry the contract into effect.

Notice in the newspapers is not sufficient, unless a knowledge of that notice bebrought home to the party

Whether, when the party is in the place, personal notice is not necessary, Query?

By the common law, as we understand it, when the plaintiff’s right of recovery depends on, and arises from an act to be done by him, he must either show an actual tender and refusal, or that every thing has been done by him, which could be done, to carry the contract into effect. Oro. Elis. 888. Sulk. 623. 1 Lord Raymond, 686. 5 East. 107.

Notices of the usual kind are proved to have been inserted in the Cincinnati papers, of the departure of the boat; and handbills to the same effect were put up at the hotels. It is proved the defendant was at the landing when the Samson was taking in her load, and that the place where he was seen was but a short distance from, and within sight of her.

There is nothing in the record to bring the knowledge of these notices home to the defendant. The evidence only proves he might have known of the departure of the boat, not that he did know of it. It perhaps authorises the inference, he was aware she was taking in freight, because he was on the wharf, but it does not authorise us to go further and say he knew when she was to depart. Besides, it is doubtful whether, as the defendant was in the city, personal notice should not have been given. It would seem the plaintiffs did not do, as the law required them to do, every thing in their power to give the contract effect.

But if this difficulty could not be got over, another remains equally formidable. The parties, it is shown, modified their original contract, which was to put the horses on board the Samson, and afterwards agreed, that the hull of another boat, the Hercules, should be fitted up to receive and transport them. We have it in evidence, that this boat, which was at some distance from the landing, was never brought there up to the time of the departure of the Samson, which was to take her in tow. By the rules of the jurisprudence which apply to the case, the plaintiffs must show that they were ^ ready and willing up to the last moment given for the performance of the contract, to do every thing required of them, an¿ uniess they show this, they cannot recover. Upon this principle it was decided, in two of the cases already cited, that in an action for not accepting a transfer of stock* it was x o sufficient for the plaintiff to show that he gave notice to the defendant to attend on a particular day and accept the transfer, and that the plaintiff went to the bank to perform his part of the contract, unless he showed that he staid at the banking house, until the last time of the day, at which the transfer could be made. In neither of these cases was it proved, that the defendant had attended at any hour of the day; but the courts held, that the opposite party, to supply the want of tender and refusal, must prove he had done every thing in his power to carry the contract into effect.

must show that tliey were ready and wiling up to tile last moment Amaneo^of^the cvcíy cumíg re-qmred of them,

The facts of the case show, that the defendant, previous to the departure of the Samson, had entered into a contract to have his horses taken down the river in another boat; but this, in our opinion, did not dispense with the necessity of the plaintiffs doing every thing which the law required them to do to give them a right of action. It shows an unwillingness merely on the part of the defendant to carry his contract into effect, not an impossibility for Mm to do so; and it is the latter which alone excuses the plaintiff from the non-performance on his part. The effect, too, of this testimony, is a good deal weakened by proof from the other side, that the plaintiffs were satisfied with the change in the defendant’s intentions. A witness swears that he heard one of them say, that he was glad of it, as it saved him the trouble of towing down the hull of the Hercules. The great quantity of ice then in the river, accounts very satisfactorily for this declaration on the part of the owner of the boat.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court be affirmed, with costs.  