Suit upon the following contract:
“ Sold to John S. Guysinger, two hundred head of well corn-fatted hogs, all spayed, and altered, weighing two hundred pounds, net, delivered between the 10th of November, 1855, and the 1st of December, 1855, at the option of Guysinger, delivered and weighed on the farm of J. S. Guysinger, in Henry township, Henry county; for which Guysinger agrees to pay to Patrick J. F. Boyle, 4 dollars per hundred pounds, net, in bankable funds; 200 dollars to be paid by the first of August, 1855, without interest; this article to be binding on our executors and administrators» December 23,1854. [Signed] P. J. F. Boyle,
John S. Guysinger.”
On the 28th of April, 1855, Guysinger paid Boyle 150 dollars of the 200 dollars due the 1st of August following; and on the 2d of August, 1855, tendered the remaining 50 dollars. Boyle refused to receive it, because tendered a
In November, 1855, Guysinger demanded the hogs and offered to pay the stipulated price for them. Boyle refused to deliver them—said he never would deliver them—that the hogs were already in Cincinnati, Ohio.
The plaintiff recovered.
The simple statement of two well established principles will be all that need be said in this case.
1. Where the plaintiff’s covenant or stipulation constitutes only a part of the consideration of the defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff might be compensated in damages, an action may be supported against the defendant without averring performance by the plaintiff. 1 Chit. Pl. 323.—Ind. Dig. 297.—Chit, on Cont. 737.—Pickens v. Bozell, 11 Ind. R. 275.
2. Where a party, before the time fixed for the performance of an agreement, disables himself to perform it on his part, no demand of performance is necessary. Ind. Dig. 787.—Chit. on Cont. 738.
The judgment is affirmed with 7 per cent, damages and costs.