Price v. Beach , 1902 Pa. Super. LEXIS 226 ( 1902 )

Opinion by

W. D. Porter, J.,

In the latter part of September, 1899, the parties to this litigation entered into a contract for the sale and delivery by the defendant to the plaintiffs of a certain lot of hay then in the barns of the former. Under the terms of the contract the plaintiffs were to pay $9.00 per ton for the hay and to press it into bales at the barns of the defendant, ivho after that work was done Avas to deliver the hay at Davis station, Ardiere the plaintiffs- were to furnish cars to receive it. The plaintiffs agreed to send the press to bale the hay the next iveek but one after the contract was made, to furnish the cars to receive the hay while the roads were good for hauling it to the station, and to pay for each carload Avhen delivered. The plaintiffs did not bale the hay until early in December, but there was evidence including that of the defendant which Avould have warranted a finding that the defendant had acquiesced in the delay and that strict performance of the stipulation as to the time when this part of the contract was to be performed had been waived. The plaintiffs, with the acquiescence of the defendant, baled the hay at the barns of the defendant in December and it remained there without either party taking any further steps to complete the contract until January 27, 1900, when the defendant wrote to the plaintiffs that he Avould not let them have the hay. The plaintiffs wrote in reply insisting upon their right to the hay under the contract; to this the defendant made no response and on March 6, 1900, sold and delivered the hay to another party.

The contract required the plaintiffs to furnish the cars and the defendant would not have been in default, because of a mere failure to deliver it, until notified by the plaintiffs that they were ready to receive: Kunkle v. Mitchell, 56 Pa. 100; Dwight v. Eckert, 117 Pa. 490; Rugg & Bryan v. Moore, 110 Pa. 242. The manner in which the parties had dealt with the subject-matter of the contract, without manifesting any intention to hold each other to a strict compliance with the provisions as to time of performance, had placed them in a position from which neither could be permitted to recede and rescind the contract without warning to the other and a reasonable opportunity to’perform: Forsyth v. North American Oil Company, 53 Pa. 168. The defendant having, after plaintiffs had failed to press the hay at the time agreed upon, elected to proceed as if the contract was still in force, could not rescind without first notifying the plaintiffs and giving them a reasonable time to perform. When the defendant notified the plaintiffs of his absolute refusal to deliver the hay, and by subsequently selling it put it out of his power to perform his. contract, the plaintiffs were not required to do a useless thing and tender cars to receive the goods which the defendant- had absolutely refused to deliver: Campbell v. Gates, 10 Pa. 483; Zuck & Henry v. McClure & Company, 98 Pa. 541; Hocking v. Hamilton, 158 Pa. 107. The second, third, thirteenth, fourteenth, fifteenth and sixteenth specifications of error are sustained.

The declarations of the defendant, made after he had notified plaintiffs of his refusal to perform his contract, would have been competent evidence if they had been made to the plaintiffs; he might have promptly repented of his breach of contract and notified them of his willingness to perform. When, however, he had notified plaintiffs that he would not deliver the goods, he could not manufacture testimony for himself by declaring to other parties that he did intend to make the delivery according to his contract. His statements made to third parties, after the controversy had arisen and in the absence of the plaintiffs, were self-serving declarations and ought not to have been received in evidence. Had he notified the plaintiffs that he would hold the hay for them until March 1, instead of making that statement to other parties, he would have had standing to rescind his contract. The seventeenth and eighteenth specifications of error are sustained.

The judgment is reversed and a venire facias de novo awarded.