43 Pa. Super. 376 | Pa. Super. Ct. | 1910
Opinion by
This action of assumpsit was brought upon a book account to recover the price of lumber sold and delivered. One of the defenses was that it was delivered under an entire contract which the plaintiff had not substantially performed. The question raised by the single assignment of error is, whether under all of the evidence the court should have given binding direction in favor of the defendants.
The defendants delivered simultaneously to the plaintiff two orders numbered respectively 670 and 671 and dated October 27, 1904, the first for 1,000 feet of 4/4 red oak, the second for 1,000 feet of 4/4 white oak, two cars of 5/4 and one car of 6 /4 white oak, and three cars of 5 /4 red oak, to be shipped within three months on the defendants’ orders. The orders specified that all the lumber should be band-sawed and
But it is argued that, whatever doubt there may have been as to the contract for the lumber specified in order 671, there was none as to the 4/4 lumber specified in order 670. Assuming this to be true, does it follow that the plaintiff was bound to show delivery or tender of delivery of all the lumber specified in that order in order to recover for such as was actually delivered? It is argued that the plaintiff was bound so to do because it was an entire contract and, being so, the plaintiff could not recover except upon proof of substantial performance or tender of performance of it as a whole. It is to be observed, however, that the plaintiff was not bound by the terms of the order to deliver the lumber until it was “ordered out.” This being so the defendants were to become the actors in the transaction. Therefore, it was prima facie not necessary
The judgment is affirmed.