Kunkle v. Mitchell

The opinion of the court was delivered, November 7th 1867, by

Read, J.

This is an action of covenant to recover damages for the non-delivery of lumber. The article of agreement between the plaintiff and defendant is dated December 27th 1862, by which the defendant, Mitchell, agreed to “ deliver on the cars at Indiana 75,000 feet of lumber at eighty-five cents per hundred feet.” This is the controlling clause as to the place of delivery. The cars would be either the ears of the plaintiff or those of the railroad company, and in either case they were to be provided by the plaintiff, and not by the defendant. The cars, therefore, being to be provided by the plaintiff, the duty was imposed upon him to show he was at least ready with the cars or willing to provide them, and to have notified the defendant of such readiness and willingness. Then follows a specification of the kind of lumber to be delivered. “ Each car-load of lumber is to be paid for as soon as delivered at the Indiana Station, on the Pennsylvania Railroad. The said Mitchell is to have from the date of this agreement until the first day of June, A. d. 1863, in which to deliver said lumber, and he also agrees to deliver two car-loads each month.” On this agreement is endorsed a receipt for $150, a cash payment on the day of its execution. Lumber was delivered covering this amount. The remaining car-loads were not delivered, nor was it in proof that any were delivered at the Indiana Station.

The plaintiff, therefore, seeking to recover damages for the non-delivery, must show that he had done all that was required of him by the contract. The plaintiff neither paid nor offered to pay, nor did he provide cars, nor offer to provide ears, nor express his willingness and readiness to do so, nor did he ever notify the defendant that cars were at the station ready to receive the lumber, nor was there any demand by the plaintiff on the defendant to deliver the lumber.

He claims to recover simply on the ground that the lumber was not delivered at the Indiana Station. Under these circumstances the plaintiff is not entitled to damages.

The verdict is therefore right, and the charge is substantially correct under the facts in the case.

Judgment affirmed.