George H. Hess Co. v. Dawson

Citations

• 149 Ill. 138
• 36 N.E. 557

Syllabus

<p>1. Contract-—/allure to perform by one excuses performance by the other. A plaintiff agreed to furnish the defendant, monthly, such castings as he might order, and the latter agreed topay for goods ordered and delivered in each month by the 20th of the following month: Held, that the plaintiff was not bound to deliver castings to the defendant unless the latter was ready and willing to make payments as required by the contract.</p> <p>2. Same—right of defenda'i to recoup damage for a breach of same. A defendant, when sued for articles sold and delivered to him by the plaintiff, will not be entitle to recoup damages for a breach of the •contract, unless he, the defendant, has performed his part thereof, or has been ready and willing’ ;o do •so at the time required.</p> <p>3. Where the plaintiff agreed to supply the defendant with all the castings that he might order from time to time, upon the condition and agreement of the defendant to pay, by the 20th day of each month, for all the goods supplied during the preceding month, the defendant, when sued for the price of goods received by him, can not recoup damages for a breach of the contract without showing that he was not in default, on his part, at the time of the plaintiff’s breach or failure to furnish castings ordered.</p> <p>4. Same—right to abandon and sue for the value of goods delivered, under it. Where the purchaser of castings fails to pay for the same as he agreed to, the vendor may abandon the special contract, and sue and recover in an action of assumpsit for the value of the castings sold and delivered to the defendant.</p> <p>5. Same—evidence of a prior verbal agreement. In an action by the plaintiff, against the defendant, for the price of castings delivered to the latter under a contract made by him, evidence of a prior verbal contract for the sale and delivery of castings is properly excluded, it appearing that they were all furnished after the written contract.</p> <p>6. Practice—bill of particu