D. M. Osborne & Co. v. Martin

Citations

• 4 S.D. 297
• 56 N.W. 905
• 1893 S.D. LEXIS 76

Syllabus

<p>1. When a special contract is entered into for the sale and delivery of personal property, a substantial performance by the vendor, is a condition precedent to his right of action against the vendee for the price of any part of the property delivered under the contract.</p> <p>2. The plaintiff, through its local agent, agreed to sell and deliver to the defendant a seven foot binder, or a seven foot platform, to be attached to a six foot machine, which the defendant was permitted to take and use until the seven foot binder, or seven foot platform, should be received. Plaintiff failed to deliver the seven foot binder, or seven foot platform. Held, that plaintiff was not entitled to recover on the note, though the defendant still had-the six foot machine in his possession.</p> <p>3. At about the time said agreement was made, the plaintiff, not having a seven fo'ot binder on hand, permitted the defendant to take a six foot binder to use until the seven foot machine should be delivered, or a seven foot platiorm delivered to be attached to the six foot machine. The defendant used the six foot machine two seasons, and had it in his possession at time of trial; but on several occasions he had offered to return it, and receive the seven foot machine, and at all times insisted on the delivery of the seven foot machine, or seven foot platform for the six foot machine. Held, that the retention of the six foot machine under the evidence, was no' waiver of the delivery of the seven foot machine or platform.</p> <p>(Syllabus by the court.</p>