
    Thurston vs. Foster.
    A being engaged in transporting timber in his schooner from Georgetown to New York, in which business it was contemplated by both A and B that said vessel should continue, the former contracted with the latter, to carry freight for him in the cabin from Georgetown to New York, during the season ensuing, in payment for a quantity of rice sold him. Within the time, A offered upon two or three occasions to take freight, but B did not furnish it. Afterward, but within the time, B requested A to go with his vessel about two and a half miles up Georgetown river to Kinloch's mills, the place where rice was usually received, there to take a cabin freight; but the vessel being then deeply laden with timber, and it not being safe and proper, (as the jury found) to attempt going to the place designated with so large a vessel, laden, A declined going. Held, that these facts did not show a breach of the contract by A, construing the contract by the circumstances under which it was made.
    
      Held also, that it was incumbent on A to do the first act; that is, to have the vessel at Georgetown, ready to receive the stipulated freight, occasionally, as the well known course of his business would allow; — and that the deposit of rice by B at Kinloch's mills was not a condition precedent.
    Whether the option as to the time when the contract should be performed was with A or B — queere.
    This was an action of assumpsit founded on a special contract to carry freight in the defendant’s schooner Constellation from Georgetown, South Carolina, to New York, during the season of 1825, in payment for a quantity of rice which the plaintiff had sold the defendant. It was admitted to be understood by both parties, that the said vessel was to he employed during the said season in carrying timber from Georgetown to New York.
    
    The plaintiff alleged in his writ, and proved, that in the spring of 1826, he requested the defendant to take a quantity of freight for him to New York, consisting of rice at Kinloch’s mills, about two and a half miles from the village of Georgetown, where it was proved that vessels in the Georgetown coasting rice trade were generally accustomed to take in their freight, and averred a breach of the contract by a refusal of the defendant to take said freight; but offered no evidence that vessels in the timber trade, or that vessels of so large a size as said schooner ever went there; nor any evidence that he had rice at said mills.
    The defendant proved that during the season ensuing the purchase of said rice, he made several trips from Georgetown to New 
      York— that he loaded said vessel each time with timber excepting the cabin —. and that prior to the plaintiff’s request aforesaid, he the defendant, upon two or three occasions, offered the plaintiff to tako freight for him, but the plaintiff did not furnish him any. He also proved that at the time of the plaintiff’s request for the defendant to take rice at Kinlock’s mills, the schooner whs deeply laden with timber — that rice in casks could not without difficulty, if at all, be got into the cabin of that vessel, and could not be carried in the hold with timber — that the usual cabin freight from Georgetown to New York consisted of bags and skins — that at the usual rate of freight, the cabin, if it would admit casks, would pay about $40 a trip — and that, in the opinion of the witness, vessels of the size of the Constellation, loaded, could not go to Kinlock’s mills. It was in evidence also, that rice at Georgetown is put up in casks only, except for the West India market.
    Upon this evidence the jury were instructed that the option as to the time of performance of said contract, was with the defendant, and not with the plaintiff; and that if they believed From the testimony that the defendant did in fact offer to the plaintiff, to take freight for him, to the extent the contract required, from Georgetown to New York, there was in that case no breach of the contract declared on, notwithstanding ho might afterwards have declined to take the freight when requested by the plaintiff* The jury were also instructed to inquire, and be able to answer on returning their verdict, whether the contract was for the transportation of such freight as could be carried in the cabin, and whether it would have been safe or reasonable when the plaintiff made his said request, for the vessel to go to said mill; and also whether the plaintiff had rice at said mills at the time of said request.
    Upon their return the jury answered, that with regard to the contract, they found that the freight was to be carried in the ■cabin, as the plaintiff knew that the vessel was to bo employed in carrying timber, and in such cases a deck load' is carried as well as hold full. The jury were also of opinion, that the refusal of the defendant to comply with the demand of the plaintiff, was not a violation of the contract, as the vessel appeared to have been deeply laden, and from the proof, they were satisfied it would have been improper to have attempted to move her, under the circumstances, to KinlocJc’s mills. They also answered, that they were unable to determine from the evidence, whether the plaintiff had, or had not rice at KinlocJc’s mills.
    If the ruling of the Judge was right as to the option of the defendant, then the verdict which was returned for the defendant was to stand, otherwise the same was to be set aside and a new trial granted, unless from the other facts found by the jury, the Court should be of opinion that the defence was otherwise maintained, in which case judgment was to be rendered on the verdict.
    
      Allen and Lowell, for the plaintiff,
    insisted that the option in regard to the time during the season when the contract should be performed was with the plaintiff and not with the defendant; and that consequently the defendant had violated his contract hy refusing to take freight when requested.
    
    If the option be with the plaintiff, then the other facts appearing in the case do not constitute a good defence. If the plaintiff did not make a demand in sufficient season to enable the defendant to carry freight to the whole amount contracted for, he certainly did it in time to enable the defendant to carry a part; and surely it ought not to lie in the defendant’s mouth to say that he would not perform a part, because he could not perform the whole.
    
    In the most favorable view that can be taken for the defendant, if the plaintiff should neglect to furnish freight when the defendant was ready to receive it and he thereby suffered, perhaps a deduction should be made from the plaintiff’s claim corresponding with the injury. But it should not annul the contract, and release the defendant entirely from all obligation.
    But if the plaintiff is not entitled to recover on the contract, he is entitled, to recover under the general counts for the price of the rice sold. Hayden v. Madison, 7 Greenl. 76; Ahhot v. Herman, 7 Greenl. 118; Keyes v. Stone, 5 Mass. 391; Proprietors of Lowell Meeting-house v. Smith, 8 Pick. 178.
    
      R. K. Porter, for the defendant,
    contended, that by the rules for construing maratime contracts, the plaintiff should have been ready to deliver freight whenever demanded by the defendant. 
      Wilkie v. Ogden, 13 Johns. 56; 5 Dane’s Jl.hr. 514; Boydcn v. Boy den, 5 Mass. 67; Bobbins v. Luce, 4 Mass. 474.
    The option should be with the one who has the first act to do. Hero it was necessary that the defendant should first procure a vessel, the option therefore was with him. Bacon’s Abr. tii. Elec. B. 5 Dane’s Abr. 359.
    But if we are wrong, and the option is with the plaintiff, it is then insisted that there has been no such demand by the plaintiff as wall enable him to maintain this action.
    When freight is tendered, it must be at a suitable time and place. 4 Stark. Ev. 1398.
   The opinion of the Court was delivered by

Mellen C. J.

'The general question reserved in this case is, whether upon the facts reported, the defendant is entitled to retain the verdict which the jury have returned in his favor; though, if the instruction of the presiding Judge was correct, there must be judgment on the verdict, without regard to the general question. Who then had the option as to the time of performance of the contract made between the parties ? The Judge instructed the jury that it was with the defendant.

In payment for a quantity of rice purchased by the defendant of the plaintiff, the defendant agreed to transport freight from Georgetown in South Carolina to New York, in his schooner Constellation, in the course of the season following the time when the contract was made in 1825, during all which season it was understood that the vessel was to be employed in carrying timber from Georgetown to New York. The jury, upon the evidence, found and certified to the court that the freight, to which the contract had respect, was to be carried in the cabin, and that the refusal of the defendant to comply with the plaintiff’s demand in the spring of 1826, was not, in then existing circumstances, a violation of the contract; as the vessel was then deeply laden with timber, and it would have been improper for her to move up the river to Kinlock’s mills, where vessels of her size were not proved to have gone. Besides, the usual cabin freight from Georgetown consists of bags and skins ; but rice at Georgetown is put up in casks only. It appears also that the defendant on two or three occasions during the freighting season, and prior to the plaintiff’s demand in the spring of 1826, he then being at Georgetown, offered to the plaintiff to take freight, but the plaintiff did not furnish him with any. According to the case of Barruss v. Madan, 2 Johns. 145, the defendant was to do the first act in order of time; that is, to be ready at Georgetown with his vessel, as the well known course of his business would allow, ready to take the stipulated freight; and that the deposit of rice at jKinlock’s mills, was not a condition precedent. There appears to be considerable difficulty in deciding in this particular- case, who had the option as to time, the plaintiff or the defendant; and as it is unnecessary for us to decide it, we place our judgment upon the general ground beforementioned.

The contract of the parties is based on the fact that the defendant, during the season in question, was to be regularly employed an the transportation of lumber from Georgetown to New York; that, of course, the Constellation could be at Georgetown only occasionally, during the contemplated season, regularly returning' to that port, after delivering her cargo at New York, in order to take in another load at Georgetown. The defendant, therefore, at each return of the Constellation to that port, complied with his duty in performing the preliminary act on his part, by being at the proper place, ready to receive the stipulated freight. On two or three of these occasions, as we have before mentioned, he offered to the plaintiff, who was at Georgetown, to take freight, but none was ready; at least none was furnished. It does not appear that the plaintiff ever offered, or, indeed, had any in readiness, except once in the spring of 1826, and then under circumstances, which in the opinion of the jury, furnished sufficient grounds for declining to receive it. The plaintiff seems to have been on the spot, and the defendant was there also with his vessel as often as the parties expected and understood she would be, when they entered into the contract. We consider this as a circumstance of importance, leading to a satisfactory construction of the contract, as to the nature and extent of the duties devolving on each of them. On the whole we think the defence is maintained by the evidence reported, and therefore there must be

Judgment on the verdict.  