1. Parol evidence of the surrounding circumstances is admissible
to show the subject matter of a contract.
2. The conduct of one party to a contract which prevents the
other from per forming his part is an excuse for
nonperformance.
Peck, the claimant, entered into a contract with the proper
military officer to furnish and deliver a certain quantity of wood
and hay to the military station at Tongue River, in the Yellowstone
region, on or before a specified day. He furnished the wood, but
failed to furnish the hay, which was furnished by other parties at
an increased expense. The accounting officers of the government
claimed the right to deduct from the claimant's wood account the
increased cost of the hay. Whether this could lawfully be done was
the principal question in the cause.
The court, upon an examination of the contract and of the
surrounding circumstances of the case, were of opinion that the
contracting parties, in stipulating relating to hay, contemplated
hay to be cut in the Yellowstone Valley, and specially at the Big
Meadows near the mouth of Tongue River -- which was, indeed, the
only hay which the claimant could have procured within hundreds of
miles, and which it was known he relied on. The government
officers, fearing that the claimant would not be able to carry out
his contract, and it being absolutely necessary that the hay should
be had, allowed other parties to cut the hay at Big Meadows, and
therewith to supply the Tongue River station. The claimant
complained of the double injury: first, of giving the hay which he
relied on to other parties, and secondly, of charging him for the
increased expense of getting it. The question was whether the
surrounding circumstances could be taken into consideration in the
claimant's excuse, although the contract made no mention of the
source from which he was to procure the hay to be supplied by him
to the government.
Page 102 U. S. 65
Mr. JUSTICE BRADLEY, after stating the case, delivered the
opinion of the Court.
We think that the facts of the case clearly bring it within the
rules allowing the introduction of parol evidence: first, for the
purpose of showing, by the surrounding circumstances, the subject
matter of the contract, namely, hay to be cut and gathered in the
region where it was to be delivered; secondly, for the purpose of
showing the conduct of the agents of the defendants by which the
claimant was encouraged and led on to rely on a particular means of
fulfilling his contract until it was too late to perform it in any
other way, and then was prevented by these agents themselves from
employing those means. The supply of hay which he depended on, and
which under the circumstances he had a right to depend on, was
taken away by the defendants themselves. In other words, the
defendants prevented and hindered the claimant from performing his
part of the contract.
That the subject matter of a contract may be shown by parol
evidence of the surrounding circumstances,
See Bradley v.
Washington, Alexandria, & Georgetown Steam Packet
Co., 13 Pet. 89;
Thorington
v. Smith, 8 Wall. 1;
Maryland
v. Railroad Company, 22 Wall. 105;
Reed v.
Insurance Company, 95 U. S. 33; 1
Greenl. Evid., sec. 277; Taylor, Evid., sec. 1082. And that the
conduct of one party to a contract which prevents the other from
performing his part is an excuse for nonperformance,
see
Addison, Contracts, sec. 326;
Fleming v. Gilbert, 3 Johns.
(N.Y.) 527. In the case last cited, the defendant was sued on a
bond obliging him by a certain time to procure and cancel a
mortgage of the plaintiff and deliver the same to him. The
defendant was allowed to prove by parol that he procured the
mortgage, and, having inquired of the plaintiff what he should do
with it, was directed to place it in the hands of a third person.
This was held to be an excuse for not having fully performed the
condition. Judge Thompson said:
"It is a sound principle that he who prevents a thing being done
shall not avail himself of the nonperformance he has
occasioned.
Page 102 U. S. 66
had not the plaintiff dispensed with a further compliance with
the condition of the bond, it is probable that the defendant would
have taken measures to ascertain what steps were requisite to get
the mortgage discharged of record, and would have literally
complied with the condition of the bond."
So when A. gave to B. a bond to convey certain premises, but
they subsequently agreed by parol to rescind the contract, and A.
thereupon sold the premises to a third person, it was held that
though the bond was not cancelled or given up, nor any of the
papers changed, yet by the parol agreement and the acts of the
parties under it the bond was discharged.
Dearborn v.
Cross, 7 Cow. (N.Y.) 48;
and see 2 Cowen & Hill's
Notes to Phillips on Evid., 605. The principle involved in these
cases is applicable to the present.
Judgment affirmed.
NOTE -- The other points involved in the foregoing case were of
minor importance, and, at the suggestion of the justice who
delivered the opinion, are omitted.
