King v. Rochester , 67 N.H. 310 ( 1892 )

The verdict establishes the fact that there was no rescission of the contract; and the only question raised by the case is, whether the plaintiffs were entitled to recover the agreed price by tendering to the defendants valves as good as those they agreed to furnish. There was evidence that the defendants agreed to purchase valves of a certain pattern manufactured in Boston, while some of the valves tendered were different in some respects, and were manufactured in Pittsburg. If the valves tendered were not such as the agents of the town had a right to understand, and did understand, that the plaintiffs had agreed to deliver, the defendants were not bound to accept them. If they were as good as the Boston valves for the purposes for which they were designed, it would not follow as a matter of law that the defendants agreed to purchase them. Many other considerations might have an important bearing in the determination of the fact of the parties' intention in this respect. An agreement to sell a black horse would not ordinarily be fulfilled by the tender of a white one of equal or greater value. Newmarket Iron Foundry v. Harvey, 23 N.H. 395, 409. And the plaintiffs' offer to deliver Pittsburg water valves in the place of Boston valves, though of the same value, might not be a performance of their contract.

Verdict set aside.

SMITH, J., did not sit: the others concurred.