| Ill. | Jun 15, 1856
This was an action of assumpsit by Rawson against Hough, upon a written contract for the delivery of corn by Hough to Rawson at a particular time at Chicago, at a stipulated price per bushel, to be paid for on delivery. The declaration alleges for breach, the non-delivery of the corn, and that Rawson was ready and willing to accept and pay for the corn according to the terms of the contract. Verdict and judgment for plaintiff below.
The court instructed the jury for the plaintiff, “ that if the defendant contracted with plaintiff to deliver to him in Chicago fifteen thousand bushels of corn, he was bound to offer to deliver the same in accordance with the terms of the contract, or pay the damages occasioned by the non-performance.” “ That it is incumbent on defendant, under such a contract, to show an offer of performance, or some sufficient excuse for non-performance on his part, to excuse himself from liability to pay damages.” “ If the defendant has not shown such offer or excuse for nonperformance, then the jury must find for the plaintiff ; that is, if there is such a contract as stated in the first instruction.”
The court refused to instruct on the part of the defendant, “ That unless the plaintiff has proven that he was ready to pay for the corn at the place of delivery, he cannot recover.” 16 That unless he has proven a readiness on his part to perform his part of the contract, he cannot recover.”
Although the language of the instructions asked by defendant and refused may be objectionable, as calculated to mislead the jury, yet the substantial question presented to the court on both sides is, whether the plaintiff, to maintain his action, should satisfy the jury by evidence that he was ready to perform his part of the contract. The promise on the part of the defendant to deliver the corn to the plaintiff at a time and place, and the promise on the part of the plaintiff to accept and pay the defendant for the corn at the price agreed on such delivery, are dependent undertakings. The obligation to deliver, and the obligation to pay, are concurrent. If Rawson was not ready to accept and pay for the corn, Hough was not bound to deliver it. Where in a contract like this the defendant undertakes to convey and deliver at a particular time and place, to be paid for on such delivery at a stipulated price, the plaintiff to maintain his action must aver and prove that he was ready to receive and pay for the property according to his undertaking. He must not be in default himself, but must show a readiness to perform on his part bSfore he can compel the defendant to show performance, or respond in damages. Diekhut v. Durrell, 11 Ill. 72" date_filed="1849-12-15" court="Ill." case_name="Dickhut v. Durrell">11 Ill. 72; 1 Chitty’s Pl. 297; Cook v. Ferral, 13 Wend. 285" date_filed="1835-01-15" court="N.Y. Sup. Ct." case_name="Cook v. Ferral's Administrators">13 Wend. 285; Dox et al. v. Day, 3 Wend. 356" date_filed="1829-10-15" court="N.Y. Sup. Ct." case_name="Dox v. Dey">3 Wend. 356; Porter v. Rose, 12 Johns. 209" date_filed="1815-05-15" court="N.Y. Sup. Ct." case_name="Porter v. Rose">12 John. 209; Saunders’ Pl. and Ev. 127, 128, and cases there cited.
An offer or tender of performance on the part of the plaintiff was not necessary—the contract contemplating the carrying and delivery by defendant of the corn to the plaintiff at Chicago. In such case a readiness to perforin only is required. Saunders’ PI. and Ev. 127, 128, and cases there cited ; 1 Chitty’s PL 297. The court therefore erred in instructing the jury upon the law of the case. From the nature of the transaction it would be difficult for the plaintiff to prove that he was ready to pay for the corn, and undoubtedly slight evidence of readiness to receive and pay for it on delivery, would be sufficient to justify a recovery by the plaintiff. The declaration states the contract according to its supposed legal effect; and in doing so, alleges a promise to deliver corn “ of the weight of fifty-six pounds to the bushel.” The language of the contract read in evidence is, “ per bushel of fifty-six pounds.” If the legal effect of the language of the contract is the same as the promise alleged, there can be no material variance in law between the allegation and proof. 1 Chitty’s Pl. 306, 307, 316; Ferguson v. Harwood, 7 Cranch, 408" date_filed="1813-03-18" court="SCOTUS" case_name="Ferguson v. Harwood">7 Cranch, 408. The statute provides that “ the bushel of corn shall consist of fifty-six pounds.” Statutes of Illinois, 1187. The statement therefore of the declaration and the language of the contract are of the same legal effect and operation, each amounting to a description of a legal bushel of corn. The contract was therefore properly admitted in evidence under the declaration.
Judgment reversed and cause remanded.
Judgment reversed.