105 Mass. 276 | Mass. | 1870
Whether the contract between the parties was a sale and purchase of the guns, or an agreement to adopt the "acts of Warren & Company, and adjust their advances and expenses in the execution of an agency assumed by them without authority, is immaterial to the decision of these cases. The rights and liabilities of the respective parties here must be determined by the provisions of their mutual agreement. Both actions are founded on that agreement. Warren & Company sue for the balance due under it; Hapgood for a return of his money, on the ground of a default by Warren & Company in not delivering the guns.
It is also unnecessary to determine whether, under this agreement and the circumstances affecting it, the guns were to be transported and delivered specifically at Boston by Warren & Company, or whether a delivery by an order upon the warehouse in New York, subject to the payment of the charges there, would be a sufficient delivery to meet the requirements of the written agreement. Warren & Company have not made, nor offered to make, a delivery in either form, until after the time fixed by the terms of their agreement for such delivery.
If this had been an absolute, independent agreement, on the part of Warren & Company, they would have been in default, upon the facts here shown. But the case finds a mutual agreement. Hapgood, at the time of executing the written contract by Warren & Company, orally agreed “ to receive the goods on or before June 1; ” and this, with the acceptance of the writing, implied a promise to pay the balance as stipulated therein. The written contract, by its express terms, engages for the delivery, only “ upon payment of balance of invoice with freight, charges and interest.” These are mutually dependent stipulations. The acts of performance by each party are to be concurrent. There
It is urged in behalf of Hapgood, that he could not pay until furnished with a statement of charges. But we do not see that Warren & Company were under any obligation to furnish such a statement except Upon request and offer of payment, or notice of readiness to pay.
No place is specifically agreed on for the performance; so that neither party is in default for not being in readiness at such place.
The report states, that from the date of the agreement until June 6 “Warren & Company never delivered or offered to deliver the guns to Hapgood, or made to him any statement or demand of the amount of the sums to be by him paid for them; that Hapgood never requested any such statement, or paid or offered to pay the said amount.”
Upon that statement, neither party is in default; neither can hold the other for a breach of the agreement. Hapgood was bound to pay only upon delivery of the guns, and Warren & Company were bound to deliver the guns only upon payment. Upon such an agreement, if both parties remain inactive, there is no breach by either. If either would charge the other upon it, he must put him in default. He must show a refusal by the other party to perform, or some act or neglect on his part which may be regarded as equivalent to a refusal. Unless excused from performance on his own part, by the refusal of the other party to perform, or some conduct equivalent to a refusal, he must show that he has offered to perform his part of the agreements; or at least that he gave notice of his readiness to perform, or, being thus, ready, requested performance by the other party. Failing to do that, he cannot charge the mere neglect of the other party to take any action, as a refusal to perform, or as a breach of the agreement. Gardiner v. Corson, 15 Mass. 500. Dana v. King, 2 Pick. 155. Hunt v. Livermore, 5 Pick. 395. Kane v. Hood, 13 Pick. 281. Tinney v. Ashley, 15 Pick. 546. Cook v. Doggett, 2 Allen, 439. Smith v. Boston & Maine Railroad, 6
The contract was binding upon both, and could be rescinded only by the concurrence of both. The act of Warren & Company, in sending the guns back to England and selling them there, did not entitle Hapgood to treat the contract as rescinded; because they had, before doing so, “ requested Hapgood to take and pay for the guns, which he refused to do.” After that refusal, he could not require them to hold the guns longer for his benefit, nor to account to him for the money advanced towards their cost. Ross v. Tremain, 2 Met. 495. There having been no previous breach of the agreement on the part of Warren & Company, Hapgood’s refusal to carry it into effect, upon their offer to do so, deprived him of the right afterwards to treat it as rescinded. Chit. Con. (8th Am. ed.) 636.
According to the terms of the reservation, the entry must be in each case Judgment for the defendant.
