after stating the facts: The learned judge instructed the jury to answer the first issue, which was directed to the question of .title, in the affirmative. The exception to this instruction presents the question for our decision. His Honor was of opinion that, by the terms of the contrаct and the conduct of the parties, the title to the property passed; that before the defendants could demand payment they were required to deliver the tobacco free on. board cars in Raleigh; he therefore instructed thе jury that “the obligation of the defendants under the contract was to place the goods on board cars Raleigh, N. C. and immediately their right to demand pay for the goods in cash accrued to them, and not until then. The contract as construed by the court means that the defendants were entitled to cash as per contract for the goods upon delivery f. o. b. cars Raleigh. As the defendants admit that they never delivered the goods f. o. b. Raleigh, the court construes the contract to be, under that state of facts, that the defendants were guilty of a breach of the contract.”
The defendants insist that in the absence of any provision in the contract naming the carrier to which the tobacco was to be delivered or the point to be shipped, it was the duty of the plaintiffs to give directions to the defendants in both respects before they could demand performance.
In Armitage v. Insole, 14 Ad. & Ell. (68 E. C. L. ) 727, *109 tbe plaintiffs sued for breach of contract by the defendants “to deliver free on board” a quantity of coal. The defendants demurred for that it did not appear that the plaintiffs named the ship or the place of destination. Coleridge J., said: “When circumstances, left uncertain by the contract, are of such a nature that one party cannot perform his part of the contract until they are fixed, the other party insisting on the contract ought to fix, those particulars. Here, both time and place should have been fixed by the plaintiffs, but certainly place.” Wightman, J., said: “I should say the agreement being silent as to time, that it must be at the option of the plaintiffs. But, however that may be, the defendant clearly cannot give the coal free on board until they know the ship and at what port it is to discharge. Whatever, therefore, the construction of the agreement may be as to time, the plaintiff must fail for want of averring that he was ready and willing to name a ship.”
In Dwight v. Eckhert, 117 Pa. St., 490, 508, Clark, J., says: “It is a well established principle of law that in a contract for sale and delivery of goods Tree on board vessel’ the seller is under no obligatiоn to act until the buyer names the ship to which the delivery is to be made; for until he knows that, the seller could not put- the goods on board.” Benjamin on Sales, 699; Mechera, on Sales, Sec. 1130.
The plaintiffs rely upon
Henderson v. Bessent,
We do not concur in the construction put upon the contract by the Judge below. Whatever views we may entertain in regard to the rights acquired and the duties imposеd by the terms of the contract of January 20, 1904, we are clearly of the opinion that upon the admissions in the pleadings and the testimony of both parties, the subject matter of the contract (the tobacco) was designated, set apart and оn June 29, 1904,. accepted by the plaintiffs as conforming to the contract in all respects. It was prized into 45 hogsheads, weighed and numbered. An invoice was made and delivered to the plaintiffs, nothing more was to be done in that respect. There can be no question that if the plaintiffs had been in Raleigh on July 1 and tendered the price thereof in money, they would have been entitled .to have, immediate possession, that- is, to demand its delivery f. o. b. on cars, carrier and destination being fixed by them. What then wеre the relative rights and duties of the parties in regard to the order of payment and delivery? The conditions prescribed by the two first rules laid down by Mr. Benjamin (Sales 318) had been met and complied with. The third rule, upon compliance with which both the title and • right of рossession Vest, is: “When the buyer is by the contract bound to do anything ás a condition, either precedent or concurrent, on which the passing of the property depends,. the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered in the possession of the buyer.” It is immaterial here whether we so construe the contract that payment of the price was a condition precedent or concurrent. It is well settled by
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abundant authority that, in a сontract for the sale of personal property nothing being said as to the time of payment, the price must be paid either before or concurrently with the passing of the title. Mechem, supra, 540;
Bloxam v. Sanders,
3 B .& C. (10 E C. L.) 477;
Scudder v. Brodburg,
106 M. & S. 427.
Battle,
J. in
Grandy v. McCleese,
“If a party to an executory contract is in a condition to demand performance by being ready and able at the time and place, and the other party refuses to perform his part, an offer is not necessary.”
Grandy v. Small, supra; Blalock v.
Clark,
■ Upon another trial the plaintiffs would be permitted to prove, if they can, such custom as alleged, not for the purpose of varying the contract, but as interpreting its terms.
Brown v.
Atkinson,
We have been unable tо find any authority in regard to the question as to what would constitute readiness and ability under the. circumstances testified to by the plaintiff Plughes. It would seem that if his view of the entire transaction is correct, he should have been allowed a reasonable time, after the refusal of the defendants, to deliver the tobacco, to convert his funds into currency, and if his funds were available for that purpose, the jury would be justified in finding that he was ready,' able and willing, within the terms of the contract as modified by the conduct of the parties. All this, however, will be for the jury upon proper instructions by the court. Eor the errors pointed out there mjist be a
New Trial.