The opinion
The opinion of the court was delivered by
Hall, J.
The defence rests on the assumption, that the performance of the plaintiff’s promise to furnish wood on Keyes’ wharf to complete the first load was a condition precedent to the performance of the promise of the defendant to go after the second load ; or, in other words, that the breach of the plaintiffs contract, to furnish the wood on the wharf to complete the first load, absolved the defendant from any obligation to undertake the farther performance of it on his part. We do not take this view of the case. The plaintiff’s engagement did not go to the whole consideration or matter to be done by the defendant. He could transport the principal portion of the wood, if the plaintiff failed to perform on his side. The plaintiff’s performance in regard to each load was also to be subsequent, in point of time, to that of the defendant. *89 The defendant was to get out of Dead Creek with at least a part of a load, before the plaintiff was to furnish the wood on Keyes’ wharf. For both reasons the performance of the plaintiff’s part of the contract would not be a condition precedent to the defendant’s liability to transport even the first load. The defendant, under the contract, must take so much wood, as he could carry out of the creek; and if the plaintiff failed to furnish wood on the wharf to complete a full load, he must transport such as he had obtained, and have his remedy in damages against the plaintiff for his breach of the contract. f
There is still less reason for holding, that the failure of the plaintiff, in regard to the first load, excused the defendant from going after the second. He could not know, that the plaintiff would fail to perform his engagement -in. regard to the second load. The defendant’s contract was to transport immediately two loads of wood, and he should have done all in his power to perform it. If the plaintiff failed on his part, the defendant would have his remedy in damages. The defendant might have provided in the contract, that he should not be bound to take either load of wood from the creek, until he could ascertain that there was wood on the wharf to complete his loads. But he did not do so. Upon any legal rules of construction, he must be held to have relied upon the plaintiff’s engagement, that it should be there, and to have assented to look to him for damages, in case of his failure to'have it there. 2 Smith’s Leading Cases 12, 13.
Upon the facts reported by the auditor, we think he took a right view of the case in all respects; and the judgment of the county court, in accepting his report, is therefore affirmed.