Crist v. Armour

By the Court, Mullin, J. The contract on which this action was brought, as proved on the trial, was that the defendant agreed to sell, and the plaintiff to purchase, the defendant’s dairy of cheese—all he had made during the season — 384 — before the making of the contract and all he should thereafter make—to be delivered at Oneida depot, the first load within a few days and the remainder when ordered by the plaintiff. The price was 8 cents per pound, payable on delivery. The defendant was to keep the cheese until they amounted to the number of one hundred, if required to do so by the plaintiff. As the delivery of the cheese and the payment of the price were concurrent acts, to be performed at the same time and place, neither could maintain an action against the other for non-performance, without performance, or a readiness and offer to perform, on his own part. (Dunham v. Pettee, 4 Seld. 508.) The mere omission to perform at the time and place specified in the contract, releases the other party from the contract ; but before the latter can maintain an. action for the breach, he must aver and prove that he was ready and willing and offered, at the time añd place for performance, to perform on his part. (Dunham v. Pettee, supra.) Having ascertained what the rights and duties of the parties were, let us in the next place see what was done under the contract. A few days after the making of the contract a load of cheese was delivered upon it, and was paid for by the plaintiff. Subsequently another load was delivered and was paid for at the time of delivery. Thus far the agreement has been fully performed on both sides. On the 9th August the plaintiff's agent went to the defendant’s house to examine the cheese, and found it not in a condition to be removed, on account of the heat. The defendant was anxious to have it delivered, but the agent would not consent to a delivery at that time, but promised to call in a few days. He returned on the 22d of August, and learned from the defendant that he had sold the cheese, and actually delivered one load in pursuance of such sale. The plaintiff was entitled by the contract to the whole dairy. The defendant had put it out of his power to per — 385 — form on his part by delivering the whole, and the plaintiff was thereby released from the agreement. (Chitty on Contracts, 427.) But the plaintiff does not desire to be released. He insists upon performance, of payment of damages for nonperformance. In other words, he elects to treat the contract as in full force, and hence he must do what the law requires to be done by him to entitle him to damages from the other party. As he was bound before the breach to be ready at the time and place of performance to receive and pay for the cheese, so now, after the breach, he must be ready and willing to receive and pay for the cheese, and offer to do so, unless the defendant has by some act of his relieved him from so doing. There was still another duty which it is probable the plaintiff was bound to perform, and which was a condition precedent to performance by the defendant, and that was to direct when the delivery should be made. The contract does not regulate the time of delivery, but it does provide that the plaintiff may require the defendant to keep the cheese until there are 100 cheeses on hand. And in addition to this, the delivery must be regulated by the season, as it was not safe or proper to deliver new cheese in very warm weather. It is quite clear, therefore, that it was contemplated by the parties, and it is the construction of the agreement, that before the defendant was bound to deliver, the plaintiff must notify him when to do it. As to the cheese made after the sale by the defendant to some third person, there is no proof of any notice to the defendant as to the time of delivery, and this omission is fatal to the plaintiff's right of action, unless it is excused by the acts of the defendant. It was conceded on the trial that the defendant was liable for the damages resulting from the non-delivery of the load of cheese sold and delivered on or before "the 22d August ; indeed there was a verdict rendered for such damages. — 386 — The plaintiff had not tendered j^erformance as to the cheese sold and not- delivered, nor does he aver that he was ready and willing to receive and pay for that, as distinguished from the residue of the cheese. If he is excused from averring and proving these matters and the defendant is nevertheless liable, it must be because the defendant, by the sale and delivery of the load, had put it out of his power to perform, and thus excused the plaintiff from all further duty in reference to that portion of the cheese.' It only remains to ascertain whether the sale by the defendant excused the plaintiff from averring and proving a notice to the defendant when to deliver the cheese, and a readiness and offer to perform on his own part.,'at the time and place for the defendant's performance. It has already been stated that the sale of the load of cheese was such a breach of the contract as justified the plaintiff in abandoning it, but did not relieve him from, the duty of performance on his part if he desired to recover damages of the defendant for such breach. The only other act done by the defendant which can be urged as an excuse by the plaintiff for not performing on his side, is the sale of the whole of the cheese made by the defendant and not delivered to the plaintiff. In 2 Parsons on Cont. 188, it is said, “ If one, bound to perform a future act, before the timefforciUing--i4r.declares his intention not to do it, this is no breach of his contract; but if his declaration be not withdrawn when the time conies for the act to be done, it constitutes a sufficient excuse for the default Wf the other party.” If the sale to the stranger and the silence of the i defendant, when the plaintiff offered to say nothing about the load delivered if he would deliver the residue of the cheese, could be deemed equivalent to a refusal to-further perform the contract, then, although that might not of itself be a.breach of the contract, yet it was never recalled, and therefore, within the authority cited, the plaintiff'had the right to treat the contract as broken. ( Weaver v. Halsted, — 387 — 23 Wend. 66. Francht v. Leach, 5 Cowen, 506. Ripley v. McClean, 4 Exch. 345.) In the following cases it is held that the mere refusal to perform is not only a breach of the contract, but it gives the other party an immediate right of action for his damages. And he 'need not wait for the time of performance to arrive before bringing his action. (Cost v. Ambergate R. R. Co. 6 Eng. L. & Eg. 230. Hochster v. De Latour, 20 id. 157, and cases cited supra.) In the following cases it is held that when a party puts it out of his power to perform, before the time for performance arrives, the contract is broken, and the other party is entitled to maintain his action, without proving performance or even a readiness to perform. (Newcomb v. Brackett, 16 Mass. Rep. 161. Ford v. Tiley, 13 Eng. C. L. 188. Inhabitants of Taunton v. Caswell, 4 Pick. 275. Smith v. Lewis, 24 Conn. Rep. 624. Frost v. Clarkson, 7 Cow. 24. Lovelock v. Franklyn, 55 Eng. C. L. 371.) It would seem to follow from these cases that when either party to a contract which provides for performance by both parties at the same time and place, before the time for performance arrives, notifies the other that he will not perform, and does not before the time for performance recall such notice ; or if he puts it out of his power to perform on his part; the other party is relieved from averring, or proving performance, or offer to perform. The defendant in this case had sold the cheese and delivered a part. This put it out of his power to perform, and the result is that the plaintiff could maintain his action for such breach, without averring or proving performance, or a readiness or offer to perform. It is not shown whether the sale to the stranger was or was not valid. But we must, I think, assume that it was a valid sale; but if once shown to be otherwise, I apprehend the defendant would not be entitled to allege it. This precise point was held in the Inhabitants of Taunton v. Caswell, (4 Pick. 275.) — 388 — [Onondaga General Term, January 5, 1861. I am of the opinion that the learned justice erred in limiting the plaintiff’s right of recovery to the damages for the load sold and delivered to the stranger, and that the judgment should be reversed and a new trial granted; costs to abide the event. Bacon, Allen, Mallin and Morgan, Justices.]