Cummings v. Tilton

Mr. Justice Breese delivered the opinion of the Court: The weight of the evidence in this case, seems to be in favor of the appellant, that he did not deliver the hogs because appellee had told him he had not all the money to pay down for them. We infer from the proof, it was a cash trade, the money to be paid on delivery. If, then, the party who is to receive, informs the party who is to deliver, that he cannot pay the money, the latter is excused from offering to deliver. It appears from the testimony of Wicks, that this was the reason why appellant did not offer to deliver the hogs, but we do not make a point on this, as there was other testimony before the jury, and they seem to have considered that of Plumby, for appellee, of more force and entitled to more favorable consideration than that of Wicks. The appellant has assigned as error, giving the instructions asked by appellee. They were four in number, and we think the first was erroneous, as it required of appellee proof only of a willingness to pay on delivery. We hold a party should show, in such a case, not only a willingness to pay, but a readiness and ability to pay. Hungate v. Rankin et al. 20 Ill. 639; Frink v. Hough, 29 id. 145. Readiness and willingness to perform, is a question of fact for the jury. It was therefore error in the courLto pass upon the weight of evidence on that question, as it seems to have done in plaintiff’s third instruction. Whether the facts proved by appellee, “ showed his readiness and willingness to perform the contract,” was for the jury and not for the court. This instruction was, to that extent, erroneous. We see no objection to instructions two and four, except, as it regards four, we are not prepared to say the qualification “ slight,” should have been allowed. In all cases, and on all the points of a case, a jury is required to have sufficient evidence to satisfy them on the point made. The cases above referred to but recognize the general rule recognized in actions for non-delivery of goods or personal property to be paid for at the time of delivery. The plaintiff must not only aver he was ready to pay at the time, but he must prove he was ready. Until this is done, a defendant is not bound to show performance, or a readiness to perform, on his part. Topping v. Root, 5 Cowen, 404. For the error in giving the instructions one and three, the judgment must he reversed, and the cause remanded. Judgment reversed.