82 Pa. 368 | Pa. | 1876
delivered the opinion of the court, October 23d 1876.
A reserved point must be based upon certain facts admitted in the cause or found by the jury. In this case the facts are admitted; expressly stated to be so in the point itself. The court below entered judgment on the reserved question for the defendant, and judgment on the verdict, which is assigned here for error.
The case was tried below upon the theory that the contract was conditional, and that the right of the defendants to pay for one-half the lumber in stock of the defendant corporation depended upon their prompt payment in cash for the other half. But the facts as set forth in the reserved point are not so. It is there stated, “that it was a part of the contract that one-half the price was to be paid by defendant in cash, within the first fifteen days of each month, for the lumber delivered in the preceding month, and the other half was to be paid in the stock of the company at par value.” This was certainly an unconditional contract, but it was urged that the whole became payable in money for two reasons, viz.: 1. The failure to pay for one-half in money as the lumber was delivered, and 2. The failure to tender the stock. In regard to the first proposition, it is sufficient to say that the agreement to take pay in stock for one-half was absolute, and not contingent upon the prompt pay