McKee v. Retter , 10 Ill. 315 ( 1848 )

The Opinion of the Court was delivered by

Caton, J.

The sufficiency of the first count in this declaration depends upon the construction to be given to the agreement declared on. By that agreement, tie defendants sold to the plaintiffs 1500 bushels of good merchantable wheat, at a certain price, and to be delivered at a certain place by the first day of April, 1847, put up in sacks, and in good shipping order, the sacks to be furnished by the plaintiff as soon as they could be obtained from St. Louis. Was the furnishing of the sacks a condition precedent to the delivery of the wheat ? It was precedent to the sacking of the wheat, of course. But because for the want of the sacks to be furnished by the plaintiff the defendants could not put the wheat in the condition contemplated by the bill of sale, should they be allowed to say that they would not deliver it at all? Should they be allowed to complain because they were not put to the trouble of sacking the wheat? If the use of the sacks would have been an accommodation to the defendants, they might have been justified in furnishing them themselves, and charging the amount to the plaintiff. It hardly would be conformable to the principles of justice, to allow the defendants to avoid the contract altogether, on account of so insignificant a failure by the plaintiff, as compared with the principal objects of the contract. Suppose they had received payment in full, instead of payment in part, as was the case, should the defendants be allowed to say, that because they could not sack the wheat, they would not even deliver it in bulk, but would keep it altogether ? The principle would be the same, whether the payment had been made in whole or only in part. The non-delivery of the sacks was to the detriment of the plaintiff rather than of the defendants, for it excused them from sacking the wheat, and entitled them to full compensation without performance in that particular. The furnishing of the sacks was precedent to the sacking of the wheat, but not to the delivery. They might deliver it without the sacks, although not in as ■good a condition as if the plaintiff had furnished the facilities which he had agreed to. In construing this agreement, like ■all others, we must look at the sense and reason of the thing, in order to determine whether the furnishing of the sacks was a condition precedent to any part or the performance by the defendants. So "far as the acts to be done by the plaintiff were necessary to enable the defendants to perform, they were precedent, and no further. This we think is reasonable and sensible, and is much more conformable to the spirit of the agreement and the ends-of justice, than it would be to say, that because by reason of the neglect of the plaintiff, the defendants were prevented from performing some of the minor parts of their agreement, they should be excused from performing any. We cannot concur in the reasonableness of such a construction, by which the defendants might have received the full pay for their wheat, and still kept it themselves, and that too, because they were not called upon to do as much as they had agreed to.

The second count is substantially the same as the first, only it goes further, and avers that the defendants sold the wheat to another before the time agreed upon for the delivery to the plaintiff; but it is unnecessary to discuss the ■effect of this averment, as the count shows a right in the plaintiff to recover without it.

The judgment of the Circuit Court is reversed with costs, ■and the cause remanded.

Judgment reversed.