Cook v. Ferral's Administrators

By the Court, Sutherland, J. I am inclined to think & demand of the oats before suit brought was necessary. The precise time of delivery was not fixed ; it was to be within a few days-—terms quite vague and indefinite; and it may reasonably be presumed, under such circumstances, that the parties contemplated a demand before suit brought. In Bach v. Owen, 5 T. R. 409, which was an action for not delivering a horse sold by the defendant to the plaintiff, it was held that a special request to deliver was necessary to be alleged and proved. Com. Dig. Pleader, C. 69. 1 Chitty’s Plead. 324,5. 1 Dunlap, 262. But, at all events, the plaintiff should have proved a readiness and willingness on his part to receive and pay for the oats, on delivery at the place appointed. The legal effect of the contract was, that he should pay for the oafs on delivery; and a readiness to pay was a condition precedent to his right of action against the defendant for not delivering. They were concurrent acts, and whoever sues, renders the act to be performed by him a condition precedent. 12 Johns. R. 209. 4 T. R. 761. 7 id. 125. Although no specific objection to the plaintiff’s recovery was made up on the trial upon these grounds, still, as the objections appear on the justice’s return, and show a substantial defect in the plaintiff’s evidence going to the foundation of his action, it was good ground for reversing the judgment. It was in the nature of a case. It was not necessary for the defendant to move for a nonsuit, or specifically to object that the plaintiff had not on this ground proved enough to entitle him to recover. The justice decided correctly in relation to the order and the plea in abatement. The defendant called his plea a plea in abatement, and enough does not appear to enable us to say [288] that what he meant to plead was good matter in bar; if it did, we would disregard the name and consider it a plea in bar. The representatives of the plaintiff in error, having been substituted in place of their intestate, by the consent and stipulation of the parties, regularly filed in the court of common pleas, it cannot now be assigned for error, whether it is covered by the equity of the statute in relations to writs of error in such cases or not. 2 R. S. 599, § 49. Judgment affirmed.