Abbott against Wyse and others, 15 Conn. 254

Church, J. The decision of the principal point in this case, must depend upon a reasonable construction of the contract in question. As we understand the provisions of this agreement, there was nothing obligatory upon the parties in regard to the sale or purchase of lumber; — its quality, quantity, nor time of delivery.

The plaintiff, in consideration of moneys loaned, and to be loaned, by the defendants, to him, agreed, that the defendants should have the preferable right or first privilege, if they pleased to avail themselves of it, of purchasing such lumber as the plaintiff might take to the Hartford market, the approaching season, at the market price ; and if they should not wish to purchase the lumber, the plaintiff was to repay the moneys loaned, with the interest.

These facts present a case entirely unlike that class of cases relied upon, by the defendants, where mutual obligatory stipulations existed,and an entire performance on the part of the plaintiff constituted a condition precedent to his right of recovery. Here, there was no obligation to sell, but only a preemptive right given to the defendants to purchase. And when, under this right, purchases were made, by the defendants, they were under the same obligation to pay, as if no such preemptive right existed. There is no intimation, suggested by this contract, that the plaintiff was to sell on a credit.

The plaintiff had received cash advancements, for which he was to pay interest. Can it be inferred, that he was to pay interest up to the expiration of the next rafting season, when, and when alone, as the defendants claim, the purchase money would fall due ? No, certainly. Interest on these advancements could only be claimed up to the time the defendants should receive lumber of sufficient value to cover the loans and the interest.

If this be so, it is equivalent to saying, that the defendants were to make payments, by the application of money already advanced, from time to time, as the lumber should be received. The plaintiff was under no obligation, having delivered one parcel of lumber, of bringing any more to the Hartford market. And th# facts in the case show, that no more lumber was brought down Connecticut river, that season, by the plaintiff, than such as was delivered before the action was brought. Why, then, do the defendants claim a postponement of payment to some future day — to the close of the rafting season ?

As well might they refer us to any other future period, as being the time of payment. The case of Withers v. Reynolds, 2 B. & Adol. 882., has a strong analogy to the present. Reynolds agreed to supply Withers with straw, at the rate of three loads in a fortnight, during a specified time ; and Withers agreed to pay thirty-two shillings per load. It was holden, that this was an agreement, that each load was to be paid for, on delivery. Rickets v. Pallison, 14 Wend. 249. This is not an entire contract,— a contract for the delivery •of a specific quantity of lumber, at a given time, for a certain price.

But if it had been such ; a substantial part having been delivered and accepted, and no return, or offer to return the amount received ; this would have been a severance of the contract, by the defendants, and they would be liable to pay for so much as they had received and retained, with liberty to sue for a breach of contract for the non-delivery of the whole; or to be allowed, in the assessment of damages, in a suit against them for the price, an equitable sum for such non-performance by the plaintiff. Shipton v. Casson, 5 B. & Cres. 378. Bragg v. Cole, 6 J. B. Moore, 114. Sinclair v. Bowles, 9 B. & Cres. 92.

Oxendale v. Wetherell, 9 B. & Cres. 386. If, then, a debt was created, by the acceptance of so much of the lumber as the plaintiff actually delivered to the defend* ants, then a general action of indebitatus assumpsit lies to recover such debt. But, as it is conceded, that the plaintiff agreed to give a preemptive right to the defendants; it is claimed, that the plaintiff, having sold a small quantity of the lumber to some other person, without the defendants’ knowledge, was such a breach of contract on his part, as to prevent his right to recover any thing for the lumber actually received by the defendants.

The principles and authorities before stated and referred to, we think, are conclusively opposed to this claim. It became a question at the trial, what was the market price of lumber at Hartford, at the time the plaintiff’s lumber was delivered. At that time, there had been no sales at Hartford, and no fixed market price was known there. The plaintiff, as conducing to show the value or market price of lumber at Hartford, offered evidence of its market price at that time, at Middletown, on Connecticut river, fifteen miles below Hartford. This was objected to, and admitted.

Connected with this, there was evidence, that ordinarily the price of lumber at these two cities, was the same. We think this evidence was properly admitted. Gregory v. McDowel, 8 Wend. 435. No sufficient cause for a new trial has been shewn. In this opinion the other Judges concurred. New trial not to be granted.