Cole v. Swanston

By the Court,

Bennett, J.

The plaintiff sold to the defendants 50,325 feet of lumber, being on board of his ship in the harbor of San Francisco, at the rate of $150 per thousand. The sale note specifies no time or place of delivery. Only a small part of the lumber was delivered, and this suit was brought to recover the price of the whole.

The delivery of the lumber, and the payment of the purchase money are by the contract concurrent acts. Neither party can maintain an action against the other for non-performance, without showing a readiness and willingness to perform on his part. (1 Chitty Gen. Pr. 492; Story on Con. § 845.) The plaintiff does not prove that he was ready to deliver the quantity of lumber sold ; on the contrary, he had, at no time after the sale, the quantity which the contract required him to deliver. Not being ready to perform the contract himself, he cannot complain that the defendants were unable or unwilling to perform on their part. He is, however, entitled to recover the stipulated price for the quantity actually delivered, deducting therefrom the damages sustained by the defendants, by reason of the nondelivery of all the lumber. (Chitty on Con. 446, 7th Am. Ed.; Banker v. Hoyt, 18 Pick. 457.) These damages were incurred by the defendants in sending lighters for the lumber, which they could not obtain, and amount to $110. The damages claimed by them on a re-sale of the lumber, do not legally result from the breach of the contract, and not being specially alleged in the answer, ought not to be allowed. The judgment should be for $1833,70, with costs in the court below, after deducting the costs of this appeal, which the plaintiff should pay.

Ordered accordingly.