M'GEHEE VS. HILL, 4 Port. 170

HITCHCOCK, C. J. — Several of the questions presented by this record, depend upon the construction of the articles of agreement sued upon. By them, the defendant below bound himself “ to deliver to the plaintiff, at his stable, in Montgomery, 5000 bushels of corn, and 50,000 lbs. of fodder, as early next fall as the same will be dry enough to house, unavoidable accidents only excepted, and the plaintiff bound himself, on the delivery of said corn, to pay 50 cents per bushel, and $1 25 per hundred for fodder.” 1.

One of the defences, for the non-delivery of the corn and fodder, and which brings up the question of construction, was, that owing to an unusual drought during the cropping season, his crop fell short, so that he did not raise sufficient to supply his own plantation, and to fill his contract with the plaintiff. We think this defence not within the terms of the exception. There is no allusion in the contract to the source whence the defendant was to derive his corn and fodder.

It was tobe delivered at all events, and the “ unavoidable accidents,” can only relate to the time when it should be delivered, which was to be as early in the fall as the corn and fodder were dry enough to house. This must be -the extent of the exception, or it must be rejected, as repugnant to the contract. 2.

On the second point, we are of the opinion that the contract was entire, and the plaintiff was not bound to receive a part and not the whole, and if the plaintiff had a right to understand, when the fodder was tendered, from what the defendant then said, that he did not intend to comply with the contract fully, he was not bound to receive any part.This was a fact, proper to' be left to a jury, and in order to discharge the defendant, the jury should be satisfied that the defendant did intend to comply fully with the contract. There was, therefore, no error in the two first instructions given-by the Court. 3.

But in the third instruction there was error. It is a well settled rule of law, that when a contract is dependent, as where one agrees to sell and deliver, and the other agrees to pay on delivery, in an action for non-delivery, it is necessary for the plaintiff to aver and prove a readiness to pay on his part, whether the other party was ready at the place t° deliver or not. The seller ought not to be compelled to part with his property, without receiving the consideration, nor the purchaser to part with his money, without an equivalent in return.

Hence, in such cases, if either vendor or vendee, wish to compel the other to fulfil his contract, he must make his part of the agreement precedent, and cannot proceed against the other, without an actual performance of the agreement, on his part, or a readiness and ability; and an averment to. that effect, is always made in the declaration containing dependent undertakings, and that averment must he supported by proof That the contract now before the Court, is of this description, cannot admit of a doubt- The instruc tion of the Court, therefore, that if the jury believed, that the credit which the corn and fodder, when delivered, might give, together with the other means of the plaintiff, would have enabled him to raise the money, so as to have been prepared to pay, Would be sufficient evidence of readiness, was erronious.

This principle was recognized by this Court in the case of Anderson vs Garthe There were peculiar circumstances in that case. Near three fourths of the crop, which had been contracted to be delivered, was paid for before the crop was ready: the time when the crop would be ready, was exclusively within the knowledge of the defendant, and payment didnot become due until the entire crop should be delivered. These circumstances, with others, mentioned by the Court, relieved Garthe from the application of the above principles in that case.

Let the judgment be reversed, and the cause remanded. 2iÍ-JiEast‘ 203 465Peters’ -l^E^io! j’ ,320 ~5 3 ib-307• i60tewa' *