Clement vs. Clement, 8 N.H. 210

Upham, J. The contract given in evidence under this declaration, is dated September 10,1833. The hides named are to be tanned annually, one ton in 1834, two tons in 1835, &c. The term, annually, might refer to the date of the note as the period from which the year should be reckoned ; but the more probable intention of the parties seems to have been that this term should refer to the several years named; thus giving the entire calendar year in each instance for the performance of the contract.

It is apparent that if the hides are not furnished within this time the defendant is exonerated from any obligation for their manufacture ; and it is equally true that if they are furnished so late in the year that the labor cannot be performed, that the defendant is in such case discharged from the contract. The defendant is to be considered as ever ready to do the labor, if the hides are seasonably furnished.

This readiness is to be regarded as a constant tender of his labor ; and like all tenders of specific articles, it makes a perfect payment if continued through the entire period in which he could legally be called upon to perform the labor. The principle of the case of Weld vs. Hadley, 1 N. H. R. 295, is directly in point in this respect. Reckoning the whole year of 1834, the hides were only furnished five months before its expiration ; while the evidence is that it would require the entire year to manufacture them into sole leather.

The hides were not furnished, therefore, within such time as to enable the defendant to complete the contract. But it is said that the plaintiff waived any objection as to the late delivery of the hides ; and this is to be considered. The evidence is that he declined receiving them, and alleged as a reason that he had a discharge of the contract from Alva Clement, with whom the contract was originally made. This cannot be considered as a waiver of any other legal objection that he might have to the enforcement of the plaintiff’s claim.

He might have considered, that one objection which he supposed fatal to the plaintiff’s claim was sufficient for him to assign. He was under no obligation to disclose all the defences it might be in his power to make. If he disclosed a defence then which would be contradictory to his defence at this time, it might destroy it; but if both defences could subsist at the same time, there is no contradiction, and an assignment of one defence is no waiver of another.

Thus if a note was outlawed, and the promissor, on being called upon should say that he had a discharge of the note, or had paid it, it would not preclude him from the additional defence of the statute of limitations, or that it was without consideration. There is no competent evidence of a waiver in this case. The contract has not been complied with; but this lias resulted from the neglect of the plaintiff to claim the payment. The first instalment, or portion of the labor to be performed under the contract is, therefore, lost to him.

It is unnecessary to go into a consideration of the second exception urged by the plaintiff ⅛ counsel as to a deficiency in the declaration. If any subsequent suits should be brought on other portions of the contract, a sufficient declaration may easily be framed, Neto trial granted.