18 Ind. 191 | Ind. | 1862
This was au action by Kane against Morton, upon an agreement by which Kane agreed to make and de
The jury found that the brick had been made and delivered as provided for, except that the 100,000 were not ready for delivery by the first of June, 1854; they were, however, after-wards delivered, as well as the residue contended for. The point made is, that inasmuch as the 100,000 were not ready for delivery at the time specified, the plaintiff did not perform the contract on his part, and could not, therefore, maintain any action upon the contract. As a general rule, a party can not recover on a special contract which he has failed to fulfill on his part. Walcott v. Yeager, 11 Ind. 84; Cromwell v. Wilkisson, at the present term.
But there is another rule equally well settled, which runs by the side of, and in some measure qualifies, the general rule above stated. That rule is, that where the plaintiff’s agreement or stipulation constitutes only a part of the consideration of defendant’s contract, and the defendant has actually received a partial benefit, and the breach on the part of the plaintiff may be compensated in damages, an action may be supported on the contract without showing strict performance by the plaintiff Pickens v. Bozell, 11 Ind. 275, and cases there cited; Boyle v. Guysinger, 12 Ind. 273. In the latter case, the plaintiff was bound to pay money, by the terms of the contract, on the first day of August. He did not tender the money until the second day of that month. It was held notwithstanding, that he could maintain an action on the contract.
The case at bar seems to fall within the latter rule. Here
Ashhurst, J. added: “Here the covenant to teach is hut a part of the consideration of the £500; for doing which the defendant may recover a recompense in damages. And the agreement of the plaintiff having been executed in part hy
It may be observed, that if the defendant sustained any damage in consequence of the plaintiff’s failure to have the 100,000 bricks ready by the time specified, it was the legitimate subject of a counter-claim, and might have been thus set up. Pickens v. Bozell, supra.
The judgment below is affirmed, with costs, find % per cent, damages.