Majority
p. 365John McDonald v. David Williams.
Headnote
To enable tbe vendee of a chattel to recover damages for breach of the contract to deliver, he must prove payment or tender of the purchase money, or other performance of the contract, upon his own part.A mere declaration of a vendor, to a third person, that he would not be able to deliver at the time agreed on, is not evidence of a breach on his part; but it might have the effect of relieving the vendee, from liability for not being prepared to receive at the time appointed.
Appeal from a judgment of tbe Sixth District Court.
Tbe action was to recover damages for the breach of a contract for tbe sale and delivery of a horse by defendant to plaintiff. There was evidence tending to show that tbe horse was worth $300, while tbe purchase price agreed on was only $150; and tbe justice rendered judgment in favor of the plaintiff for $100 damages. Tbe evidence rebed on, to show a breach of tbe agreement by tbe defendant, appears in tbe opinion of tbe court.
John GooJc, for tbe appellant
Tbe contract alleged to bave been broken was for tbe sale of a horse, to be delivered in tbe after
p. 366
noon, at 5, P. M. The defendant was at tbe place of delivery at tbe bour, ready to deliver tbe borse, and tbe plaintiff was not there to accept it. Tbe previous declaration of tbe defendant to a third person, that be would not be able to deliver at tbe time fixed, was not a breach of tbe contract, and, if it was entitled to any weight, could only be of use in relieving tbe plaintiff from liability for not being ready to receive and pay for tbe borse at tbe bour agreed on.
Under these circumstances, no breach of tbe contract was made out until a tender bad been made, either by tbe defendant, of tbe borse, to fulfil tbe contract on bis part, or by tbe plaintiff, of tbe money, to entitle him to damages for tbe non-delivery. Neither party, without doing the acts required, could maintain an action for breach of tbe contract.
Judgment reversed. *