Offutt v. Wells

BYRD, J. Under the charge of the court, the question whether the evidence shows that the parties made a contract, does not arise. But admitting that a contract was made as shown by the evidence, the question is, was it incumbent on the appellant to prove that “he offered to pay, or was able to pay,” before he brought suit ? A contract of sale is perfect when all the terms are agreed upon by the parties, and they mutually bind themselves to perform their respective obligations imposed thereby. If an article is contracted to be sold at a certain place, that is the place of delivery, in the absence of any express stipulation in the contract; and in the absence of any express stipulation therein, the law does not impose [201] upon the vendor the duty of a delivery of the article sold, before payment of, or an offer to pay, the purchase-money. Robbins v. Harrison, 31 Ala. 160; Long on Sales, (Rand’s Ed.) 450, 452. If the vendor brings suit on the contract before a delivery, in order to recover, he must prove an offer, or a readiness to deliver the thing sold at the place and within the time the contract stipulated. — Davis v. Adams, 18 Ala. 264. So on the other hand, if the vendee brings suit to recover damages for a failure to deliver goods sold for cash, at the place and within the time stipulated or fixed by law, he must prove that he paid, or offered to pay, the vendor the purchase-money, or some goocj: excuse for not making the offer, to entitle him to a recovery. In this case, the court below instructs “the jury that there being no evidence before them, that plaintiff had offered to pay, or was able to pay for the flour before bringing this suit, they must find for the defendant.” All the evidence introduced on the trial, it is evident from the record, is not set out therein. But, upon the evidence set out, we can see no error in the charge given. The views expressed, and our conclusion, are sustainable upon the authorities cited, and the following: Steamer Thompson v. Lewis & Co., 31 Ala. 498 ; Long on Sales, pp. 446 to 453; 1 Pars, on Con. 534-35; Chitty on Con. 374-5, 426; Wayne v. Billingslea, 3 Ala. Rep. 679; West v. Emmons, 5 John, 179. The words used by the court in the charge, “or was able to pay,” were as favorable to appellant as the law authorized. It results that the judgment of the court below must be affirmed. Judge, J. not sitting.