Anderson v. Garth , 1 Stew. 160 ( 1827 )

JUDGE SAFFOLD

delivered the opinion of the Court.

It is conceived to be a correct general principle, as contended for by the defendant in error, that in contracts where two concurrent acts are to be done, one being the consideration of the other, the party who sues fornonper-fortnance must aver and prove that he had performed or was ready to perform his part of the contract. This is the law governing all contracts involving purely dependent stipulations, and is the doctrine maintained in the cases of Morton against Lamb, ^a and Watter-house against Skinner, ^b and in the several cases to which they refer; but as is expressed in the first mentioned case, whether covenants be or be not independent of each other, must depend on the good sense of the case, and on the order in which the several things are to be done. In this case the defendant in the action agreed to gin and bale the cotton and deliver it at a particular place as soon as practicable; the plaintiff agreed to pay for it as soon as it was delivered. When it was or could be delivered, was exclusively within the knowledge of the defendant; he had received the amount of the execution and the $50 advanced, nearly three fourths of the amount of the price agreed on; the payment did not become due until the entire crop should be deliveied at the place. From tiie contract we must conclude that it was the intention of the parties that Anderson should deliver all the cotton, or give notice to Garth on what day it would be done; and that he was bound to prove this before it could be necessary for Garth to prove that on. any particular day he was in possession of the small bal. anee of money necessary to pay for the crop and ready to pay it. It was not necessary that the plaintiff should have proved that at any time before the last sale and the delivery of the cotton he was prepared to pay for it. And if it is to be reviewed as a contract still open for performance, that the time when it was practicable for Anderson to have delivered the cotton according to his contract with Garth had not arrived when he made the second sale of it, this sale was clearly a violation of the first contract; and Anderson had thereby rendered himself unable to perform it, and after this it was unnecessary for Garth to prepare for making payment. It is the unanimous opinion of the Court that the judgement be affirmed.

a 7Tel.m 121,

b &bos. &p. 447.