Bersch v. Sander

Holmes, Judge, delivered the opinion of the court. This was an entire contract. One party agreed to furnish the other with ice during a given time and season, to be delivered from his ice cellar from day to day, at a fixed price per ton, payable monthly for the quantity delivered at the end of each month. It appears that the amount due for the month ending the 8th day of July was not paid when the bill was presented, but that before the 24th day of that month payment had been made and accepted upon it without objection, leaving a balance unpaid on that day of seventy-eight dollars, and that the other party had continued to deliver ice as before up to that time, when he stopped, and refused to deliver any more under the contract, the price having advanced fron ten to fifteen dollars per ton. On this state of facts the party must be held to have waived the failure of the defendant to pay the bill on the day when it was presented, and impliedly and virtually consented to give a further credit on the bill then due. Having thus elected to continue the contract, he had no right to present a bill for the current month on the 24th day of July, and refuse a further fulfilment of the contract, and his stoppage then was a violation of the contract on his part without adequate cause. The contract being entire, he was not entitled to recover for any part of it. A full performance on his part was a condition precedent to a right of action for the price of any part of the ice so delivered under the contract. (McKnight v. Dunlap, 4 Barb. 44; Paige v. Ott, 5 Den. 406; Oakley v. Merton, 1 Kern. 25; 2 Pars. Cont. 517-20.) The same principle applies as in cases of servants who leave, without adequate cause, before the end of the time for which they are hired. Schnerr v. Lemp. 19 Mo. 40; Aaron v. Moore, 34 Mo. 79.) The contract was for the delivery of ice at a fixed price during a whole season, and the party could not break it off in the middle of summer, because the price had risen, without [107] a clear breach of the contract on the other side. Having waived the default of the defendant at the time,.he could not avail himself of it afterwards under the circumstances proved. The plaintiff sues as assignee of the account, by virtue of a written assignment on the back of it. The assignment was denied by the answer. No proof appears to have been given of any assignment of the account sued on. It is stated in the bill of exceptions that it was proved that the articles of agreement had been assigned to the plaintiff. It is not apparent how this worked an assignment of the account as alleged in the petition. The petition makes the account the basis of the cause of action, and this was not proved to have been assigned to the plaintiff. On the cas.e made the plaintiff was not entitled to recover, and the defendant’s instruction should have been given. ,, Judgment reversed and the cause remanded. Judge Wagner concurs ; Judge Lovelace absent.