Fleming v. Potter

7 Watts 380 | Pa. | 1838

The opinion of the Court was delivered by

Sergeant, J.

In the case of Roberts v. Beattie, 2 Penns. Rep. 63, the late Mr Justice Ross examined with much care the principles that regulate contracts for the delivery of specific articles, and has referred to numerous authorities on the subject, some of which seem to be decisive on the present question. In Townsend v. Wells, 3 Day’s Rep. 327, in the supreme court of errors, the suit was brought upon a promissory note for 80 dollars, to be paid in good West India rum, sugar or molasses, at the election of the payee, within eight days after date. It was held to be unnecessary to aver that the payee had made his election, and given notice thereof to the promissor, as the latter was bound at all events to make payment within eight days in one of the articles specified, and on failure would immediately become liable on the note. So in Thomas v. Roosa, 7 Johns. Rep. 461, on a note by which the defendant promised to pay the plaintiff a good horse, to be worth with saddle and bridle 80 dollars, and goods out of the store amounting to 20 dollars, it was held that no request was requisite, for a request was not part of the contract.

Putting the case of the defendants here in the most favourable point of view for them, namely, that the contract was not to deliver specific articles, but ploughs or castings such as the defendants made, and that the election of the kind of articles was in the plaintiff, yet on failure of the plaintiff to elect, the promissor was bound to perform his contract by delivering some of the articles stipulated ; the right of election devolving upon him in the absence of an election by the plaintiff. It was therefore the duly of the defendant to show he was ready and willing to deliver them, and still continued ready and willing to do so. It must be deemed the act of the promissor to have bound himself by such a contract, according to the principle settled in Paradise v. Jane, Alleyn 27, cited 10 East 533, 2 Penn. Rep. 67, that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding even the accident of inevitable necessity, because he might have provided against it by his contract. The rule, therefore, laid down bjr the court below was right; that demand and selection were not necessary to be proved, but the defendants were bound to show that they were ready at the time and place appointed to deliver I he articles stipulated, and had continued ready. On failure to do so, they became liable to pay the money. The defendants might have shown this on the plea of non assumpsit. 2 Penns. Rep. 70 ; 13 Johns. 5, 6. As to the plea of payment, the court properly instructed the jury there was no proof of payment.

There is no foundation for the second error

Judgment affirmed.