Hungate v. Rankin

Walker, J. By the provisions of this agreement, the parties were mutually bound, each to the other, to perform their several undertakings at the same time. The terms of this agreement require the appellant to deliver the number and kind of hogs specified, between the first and tenth days of December, and the appellees to pay the contract price for them when delivered. Appellant was not bound to deliver them until the appellees should pay for them, nor were appellees bound to pay until they received the property. The performance of these acts being mutual and dependent on each other, the appellant could not maintain an action for a breach of contract until he delivered the property, or was ready and willing and offered to deliver, within the time limited by the contract, nor could appellees insist upon a breach of contract unless they were ready and willing and offered to perform their part of the agreement within the same time. Greenup v. Stoker, 3 Gilm. R. 213 ; 1 Saund. R. 33. The evidence shows that appellant, on the ninth and tenth days of December, had two hundred head of well-fatted hogs ; that soon after that time he sold of those hogs one hundred and eighty head to Monical, who testifies that one hundred and forty of that number weighed over two hundred pounds, and that twenty or thirty of the remainder of them weighed over one hundred and eighty pounds. Of the weight of the remainder of the lot there is no evidence, except that when Rankin made the demand, appellant informed him that he had the hogs convenient, and no objection appears to have been made either to the number or weight. Other portions of the evidence show that appellant, previous to that time, had purchased from Shields forty-five head, weighing from two to three hundred pounds each, and had also purchased of Connelly nineteen head, weighing-over two hundred pounds each, all of which were conveniently situated in the neighborhood, and were subject to appellant’s order on the tenth of December. The evidence shows that when Rankin and Apperson went to appellant on the tenth of December to demand the hogs, he offered to commence weighing and delivering them, and to continue until it was completed. At that time Rankin made no objection that the hogs were not all on appellant’s farm, and there is nothing in the evidence from which we can infer that they could not have been there by the time those on his farm were weighed and delivered, if it had been necessary to deliver them to fill bis contract. Erom this evidence we are not prepared to say that appellant was not ready and willing to perform, or that he did not offer to perform his part of the contract. The objection made at the time, was, that appellant did not have the hogs weighed when the demand was made, and this is urged as a breach that should entitle appellees to recover. The evidence shows that Rankin and Apperson had determined not to receive the hogs, and delayed going to appellant, on the tenth of December, until it was too late to deliver the hogs. There was no evidence that they were ready and willing to pay for and receive the hogs if they had been weighed when they were demanded. But the determination formed by them not to receive the hogs, and the delay in going for the purpose of preventing a delivery, very clearly indicates that they were not willing and ready to perform their part of the agreement, and no offer to perform was attempted to be shown. And unless appellees were ready, willing and offered to perform, they have no right to recover for a failure on the part of appellant to tender the hogs. Appellees were equally bound to tender the money as appellant was to have tendered the hogs. It was urged that the admissions of Rankin should not have been received to bind Apperson, the beneficial plaintiff. He was undoubtedly bound by what was agreed between him and Rankin before they went to demand the hogs, and he is likewise bound by the statements of Rankin in his presence, in reference to the contract, which he failed, at the time, to contradict. And the evidence of the understanding had between them on the tenth of December, before going to appellant, was a circumstance from which a jury might have inferred an agency, and if Rankin was acting as his agent in this matter, he should be bound by the admissions made by the agent within the scope of the power delegated, while engaged in carrying out the object of the agency. We are, therefore, of the opinion that the court did not err in admitting this evidence. The judgment of the court below should be reversed, and the cause remanded for further proceedings. Judgment reversed.