252 Pa. 332 | Pa. | 1916
Opinion by
The only question in the case, as suggested by the ap
This action was brought by the plaintiff, a brick manufacturer, against the defendant, a builder, to recover a balance of $5,014.75 due on a contract for the sale and delivery of brick for a large building operation. The contract is dated April 6, 1910, the deliveries of brick were completed in 1911 or 1912, and the houses involved in this controversy were finished in 1912 or early in 1913. The contract contained the following provisions: “Payments to be made as follows: 75 per cent, to be paid weekly for brick delivered to each Thursday evening. The balance to be paid in cash, thirty-nine hundred dollars ($3,900.00) to remain and pay for equities in six houses, Nos. 3003 North Twenty-fourth street, subject to a mortgage of eighteen hundred dollars ($1,-800.00); Nos. 3002-4-6-8-10 Judson street, subject to mortgages of $1,300.00 on each.” Payments in cash were made as brick were delivered, and this action was brought to recover in money the balance due after all the brick had been delivered and the six houses had been finished. The defendant denied the right of the plaintiff to recover in money $3,900.00 of the contract price on the ground that that sum was payable under the terms of the contract by a -transfer of the equities in the six houses, and averred his willingness to convey the houses to the plaintiff. The defendant alleges that he tendered a deed for the first house when it was completed, and that the plaintiff declined to accept it, and demanded payment in money. The plaintiff denies that a tender of the deed was made for any of the six houses. The court, on defendant’s request, instructed the jury that if defendant tendered a deed for the first house which was completed and plaintiff refused to accept it and declared he
The learned court below charged the jury, inter alia, as follows: “Payment was to be made as to that $3,900.00 in equities in houses. The plaintiff says he never made any demand for those houses. The defendant says he tendered a deed for one of them, but not the others. So the question is, whether the plaintiff has a right to recover in cash. I am of opinion that the plaintiff has a right to recover in cash, if he is entitled to recover at all, for the following reason: That a failure to show either payment or an offer of payment in the articles fixes the liability of the defendant to pay in cash.” The court in banc on a motion for a new trial sustained this instruction to the jury. We agree with' the trial court that the plaintiff was not required to make a demand for the conveyance of the houses before bringing the action to recover in money the balance due under the contract. The deliveries of the brick were completed and the houses had been finished a year or more before this suit was brought in 1914. This was ample time in which to make payment of the $3,900.00 by conveyance of the property. Had the defendant tendered a deed for the property as provided in the contract, the plaintiff was required to accept it, unless some substantial reason was shown why he should not do so: Grunwald v. Hahn, 176 Pa. 37. The transfer of the property was a means of payment, other than money, provided in the contract which neither party could violate. The contract was not an agreement" for the sale and delivery of real estate, but for the sale of
As pointed out in the appellant’s printed brief, we have held that where the price of an article is to be paid partly in cash and partly in the stock of a company, as in Phillips, et al., v. Allegheny Car Co., 82 Pa. 368, the plaintiff must make a demand for the stock before he brings suit to recover the whole claim in money. But Mr. Justice PaxSon wrote the opinion in the Moore and Phillips cases, supra, and in the Phillips case cites the cases we have referred to and says (p. 372) : “The present case is easily distinguished from any of those above cited. Here the contract was with a corporation. It agreed to pay for one-half the lumber in its own stock. Had the contract been to pay in a horse, or even in the stock of another corporation, the case would have been materially different.”
The judgment is affirmed.