Majority
Headnote
Counter-claim—Contract—Condition precedent.The only question presented by the appeal arises upon defendant’s counter-claim and plaintiffs’ reply thereto.
Appellant pleads two contracts, each for the delivery of several boat-loads of coal, to be paid for in thirty days after delivery and avers non-delivery and damages, by reason of a rise in the price of coal; the making of the contracts is admitted, partial performance only is claimed, and a rise in the price is found by the court.
But plaintiffs, by way of reply, allege that the contracts provided that defendant should pay for each boat-load in thirty days from delivery, and there is no dispute that appellant did hot comply with this provision of the contracts if the same formed a part thereof.
It cannot be doubted, upon the authorities cited by the learned chief justice below, and upon the plainest foundation principles of the law of contracts, that if defendant made default in respect of the payments provided in his agreements, his counter-claim must fail.
Upon this single question of fact the evidence appears to be so strong in respondents’ favor that a contrary finding could be sustained with difficulty, if at all.
The criticism of the language of the reply, on the part of appellant’s counsel cannot have weight in a court of review.
In the first place the language fairly imports that deliveries were to be made at different times, -but, if not, the evidence to that effect went in without objection, and the pleading now must be held broad enough to make the testimony effectual.
The judgment should be affirmed, with costs.
MoGown and Pitshke, JJ., concur.