Bradley v. King

Citations

• 44 Ill. 339

Syllabus

<p>1. Tender—on the sale of chattels—what is a sufficient tender thereof— and of a plea of tender. A contract of sale of a quantity of lumber provided that the lumber should be inspected by a particular person, and should “ inspect at least twenty-five to thirty per cent better than common.” In an action by the purchaser against the vendor for failing to deliver the lumber, the defendant pleaded a tender of performance, averring that the lumber tendered was inspected by the person named, but not that it was inspected “ twenty-five to thirty per cent better than common.” The plea was defective in failing to show that the lumber tendered was of the quality required by the contract.</p> <p>3. Sales'—sede for delivery at a specified time—acceptance of part after the time. On a sale of chattels to be delivered by a certain time, if the vendor fails to make delivery within the time, an acceptance of a part afterward will operate as a release of damages for non-delivery only as to the portion accepted, there being no express waiver.</p> <p>3. Same—when payment is to he made on delivery—effect of refusal to pay. And where the contract provides for payment on delivery, and the vendor fails to deliver within the time stipulated, but the purchaser accepts part afterward, such acceptance places the purchaser under the same obligation, as to payment, that he would have been under had the property been delivered and accepted within the time stipulated in the contract, and if the purchaser refuses to perform this obligation on his part, the vendor is excused from further delivery.</p> <p>4. Same—whether the sum due for the part thus accepted may he set-off. against damages for non-delivery of the residue—and how the purchaser may mail thereof. In an action by the purchaser against the vendor for non-delivery within the stipulated time, a plea that a part was delivered and accepted afterward, but that the purchaser refused to pay for the part thus accepted, on its delivery, as requ