Crosby v. Watkins

Terry, O. J., after stating the facts, deEvered the opinion of the Court—Baldwin, J., concurring. Two questions are presented by the record: First, whether the plaintiff can sue in his own name on the contract; and second, whether [88] he can recover in this action without showing a tender of the price agreed on. The first point is answered by the decision of this Court in Ruiz v. Norton, 4 Cal., 855. Upon the second point, Mr. Parsons, in his work on Contracts, vol. 1, p. 449, states the rule to be as follows: “ In every sale, unless otherwise expressed, there is an implied condition that the price shall be paid before the buyer has a right to possession; and that is a condition precedent. But it seems, that in an action for non-delivery, the buyer need only aver that he was ready and willing to receive and pay for them, and a refusal to deliver, without averring an actual tender.” In such cases, the measure of damages is the difference between the contract price and the actual value of the article sold. 2 Parsons, 481, note A. Judgment affirmed.