Emerson v. Slater,
63 U.S. 28 (1859)

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U.S. Supreme Court

Emerson v. Slater, 63 U.S. 22 How. 28 28 (1859)

Emerson v. Slater

63 U.S. (22 How.) 28


In the case of Slater v. Emerson, 19 How. 224, this Court held that where there was a contract to finish a railroad by a given day, the parties to which were the contractor with the railroad company of the one part, and a stockholder in the company of the other part, time was of the essence of the contract, and there could be no recovery on the written agreement without showing performance within the time limited, but added that a subsequent performance and acceptance by the defendant would authorize a recovery in a quantum meruit.

This Court now holds that the promise of the stockholder contained in the written agreement was an original undertaking, on a good and valid consideration moving between the parties to the instrument, and not a special promise for the debt, default, or misdoings, of another. Consequently, it is not within the operation of the statute of frauds.

The cases upon this point examined.

Being an original contract, parol evidence was admissible to show that the parties had, subsequently to the date of the contract and before a breach of it, made a new oral agreement, on a new and valuable consideration, enlarging the time of performance, and varying its terms.

This was the same case which was before this Court at a previous term, and is reported in 60 U. S. 19 How. 224.

The substance of that case and the new view of the present one are fully stated in the opinion of the Court, to which the reader is referred.

Page 63 U. S. 35

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