Catlin v. Jones, 85 P. 515

Catlin v. Jones

85 P. 515 | Or. | 1906

Mr. Chief Justice Bean

delivered the opinion of the court.

1. By the terms of the contract upon which plaintiffs seek to recover, the payment of the purchase price and the delivery of the hops were made concurrent acts, to be performed at the same time. The defendant was not bound to deliver the hops until they were paid for, nor were plaintiffs bound to pay for them until delivered. Payment and delivery were to be performed simultaneously: Beauchamp v. Archer, 58 Cal. 431 (41 Am. Rep. 266); Meeker v. Johnson, 5 Wash. 718 (32 Pac. 772, 34 Pac. 148).

2. But, before the plaintiff can recover damages for a breach of the contract, he must show more than the mere default of the defendant. He must show that he was ready and willing to perform his part of the contract by accepting and paying for the hops at the time and place appointed. The hops were to be delivered at a particular place, ¿nd if the plaintiffs were ready at the appointed time and place to perform their part of the contract, and the defendant did not have the hops there ready for delivery, the right of action for a breach of contract was complete without a tender of the purchase price or a demand for the hops: Coonley v. Anderson, 1 Hill (N Y.) 519; Neis v. Yocum (C. C.), 16 Fed. 168. But if the defendant, as he alleges, had the hops ready for delivery at the time and place specified in the contract, the plaintiffs must show an offer then to receive and pay for them before they can maintain an action for nondelivery.

3. Now, it is not directly averred in the complaint that plaintiffs were ready and willing at the time and place specified to perform the contract on their part, but this omission is cured by the allegation of the answer that defendant had the hops at Brooks Station ready for delivery at a time stipulated, but that there was no one present to receive and pay for them. This averment of the answer is denied by the reply, and an issue *163thus made on the plaintiffs’ readiness and willingness to perform the contract on their part. Consequently the defect in the complaint is cured by the answer: Turner v. Corbett, 9 Or. 79; Chesapeake & Ohio R. Co. v. Thieman, 96 Ky. 507 (29 S. W. 357); Schency v. Hartford Fire Ins. Co., 71 Cal. 28 (11 Pac. 807); Beckmann v. Phoenix Ins. Co., 49 Mo. App. 604. In an action of this kind, readiness and willingness to perform by the plaintiff must be alleged in the complaint, or else it will be had on demurrer, but where such allegation is omitted and the defendant in his answer by way of defense sets up nonperformance • by the plaintiff of the terms of the contract, and the plaintiff takes issue upon such averment, the defect in the complaint is helped out or aided by the subsequent pleading. This rule is well illustrated in Beckmann v. Phoenix Ins. Co., 49 Mr. App. 604. That was an action on a policy of fire insurance, and the complaint failed to allege that the plaintiff complied with certain conditions precedent to his right of action. The court said the complaint would have been vulnerable to a demurrer, but that the defendant having by way of defense set up the nonperformance of the conditions precedent on the part of the plaintiff, and plaintiff having taken issue by reply, the defect was cured. The same principle is applied in other eases cited.

4. The questions for determination, therefore, under the pleadings, were (1) whether the plaintiffs were ready and willing at the time and place stipulated to perform the contract on their part by accepting and paying for the hops, and if so (2) whether the defendant was ready and able at that time to comply with the contract by making the delivery. Upon this latter point the instruction requested by the plaintiffs was, in our opinion, correct and should have been given and the inquiry of the jury should have been answered in the affirmative. Where, under the terms of an executory contract of sale, the delivery of bulky articles, such as hops, which require inspection and examination, is to be made at a particular place, tender must be seasonably made so that the vendee, who is bound to attend for the purpose of receiving the property, may have an *164opportunity to examine and inspect it by daylight to ascertain whether it complies with the contract: 2 Meachem, Sales, § 1137; Croninger v. Crocker, 62 N. Y. 151; Startup v. MacDonald, 46 E. C. L. 591. The rule upon this subject is thus admirably stated by Baron Parke, in Startup v. MacDonald: “A party who is, by contract, to pay money, or to do a thing transitory, to another, anywhere, on a certain day, has the whole of the day, and if on one of several days, the whole of the days, for the performance of his part of the contract; and until the whole day, or the whole of the last day, has expired, no action will lie against him for the breach of such contract. In such a case the party bound must find the other, at his peril, and within the time limited, if the other be within the four seas; and he must do all that, without the concurrence of the other, he can do, to make the payment, or perform the act, and that, at a convenient time before midnight, such time varying according to the quantum 'of the payment, or nature of the act to be done. *• * But where-the thing to be done is to be performed at a certain place, on or before a certain day, to another party to a contract, there the tender must be to the other party at that place; and as the attendance of the other is necessary at that place to complete the act, there the law, though it requires that other .to be present, is not so unreasonable as to require him to be present for the whole day where the thing is to be done on one day, or for the whole series of days where it is to be done on or before a day certain; and, therefore, it fixes a particular part of the day for his presence; and it is enough if he be at the place at such convenient time before sunset on the last day as that the act may be completed by daylight; and if the party bound tender to the party there, if present, or, if absent, be ready at the place to perform the act within a convenient time before sunset for its completion, it is sufficient.” If, therefore, the defendant did not have the hops at Brooks in time for the plaintiffs to inspect them by daylight on the day stipulated for the delivery, he did not comply with his contract and his act is no defense in this case, if in fact the plaintiffs have themselves *165complied with the contract so as to entitle them to sue the defendant for nondelivery.

5. Nor would the mere transportation of the hops to Brooks Station be a defense, if the plaintiffs were there ready and willing to accept them, unless the defendant ór some one .representing him was present to make the delivery and to receive the purchase price. If both parties had been present at the time and place agreed upon and able to perform their respective undertakings, neither could have put the other in default without offering to perform on his part: Davis v. Adams, 18 Ala. 264. It was, therefore, incumbent on the plaintiffs, if they were ready and willing to perform the contract and the defendant was likewise ready, to. offer to perform before'they could maintain an action for a breach, but they were not bound, as Judge Deady says in Neis v. Yocum, 16 Fed. 168, '"“to go out into the highways and elsewhere to find the seller” to make such offer. It was the duty of the defendant, if he desired to perform his contract, to be present at the time, and the place of performance either in person or by agent so that he could have delivered the hops and received the pay therefor.

Judgment reversed, and new trial ordered. Reversed.