Pusey & Co. v. McElveen Commission Co.

Simmons, Justice. The plaintiffs sought to recover upon an alleged breach of contract by the defendants in failing to deliver a certain quantity of hay which they had agreed to sell and deliver to the plaintiffs at Avondale, Pennsylvania, to be loaded upon a vessel at Philadelphia, chai’tered by the plaintiffs for the purpose of bringing the hay to Brunswick. According to the allegations in. the declaration, the delivery of the hay by the defendants and payment therefor by the plaintiffs were to be concurrent acts. The declaration does not allege any specific time for performance by the parties on either side, and is silent as to any demand upon the defendants for delivery or any refusal to deliver, or any offer of payment or tender of the purchase money, and as to any readiness or willingness of the plaintiffs to perform on their part. This being so, the declaration failed to set forth a com 775 píete cause of action, and the court erred in overruling the demurrer. “ Where two acts are to be done at the same time, as where one agrees to sell and deliver, and the other.to receive and pay, in an action for the nondelivery it is necessary for the plaintiff to aver and prove a readiness to pay on his part, whether the other party was at the place ready to deliver or not.” If no time for delivery is specified in the contract, a demand and refusal must be alleged. The allegation that the defendants failed to deliver “ at the time specified,” there being no other allegation showing that any time was in fact specified in the contract, is not sufficient, in the absence of other requisite allegations, to set forth, a breach of the contract. See Biggers v. Pace, 5 Ga. 171; Hotchkiss v. Newton, 10 Ga. 560, 565; Bruce v. Crews, 39 Ga. 544(3), 548; Allen v. Hollis, 31 Ga. 143, 147; Maxwell, Code Pleading (ed. 1892), p. 81, and cases cited in note 1. Judgment reversed.