Leek Milling Co. v. Langford

81 Miss. 728 | Miss. | 1902

Whitfield, C. J.,

delivered the opinion of the court.

The instructions given for the appellee in this case are erroneous in failing to predicate the appellee’s right to recover upon his being able or in a condition to perform the covenants on his part contained in the contract, and in not advising the jury that the only damages that could be awarded were those which were the natural and proximate results of defendant’s failing to perform the covenants on its part, if it did so fail to perform them. There is very much in the evidence to suggest that the fact that the machinery bought by the appellee was levied upon and taken from him, from time to time, because he failed to pay the purchase money, was itself the reason of the contract going to pieces. He must have been financially able to perform his covenants. The covenants in this contract were mutual and interdependent. Appellee could only hold defendant to compliance by showing that he had himself fulfilled the covenants on his part.. This he was not in a condition to do, if it be the fact that as fast as he got the machinery it was taken away from him by the vendors, because of his failure to pay. We think the instructions omitted this necessary qualification, and they are clearly too broad in not restricting the damages as stated above.

Reversed and remanded.