MacEvoy v. Kerr

Citations

• 261 Pa. 428
• 104 A. 668
• 1918 Pa. LEXIS 758

Syllabus

<p>Contracts- — -Surety ship — Construction—Sales.</p> <p>In an action' on a contract of suretyship it appeared that plaintiff and defendant’s principal entered into an agreement on June 20, 19Í6, under which the former was required to furnish the latter six barrels of dye “delivery to be made 600 pounds monthly, at $2.75 per pound until January 1, 1917,” and defendant agreed to be “responsible for payment of said goods within 30 days.” No reference was made as to the time of the month on which shipments ' were to be made or whether there should be one or more shipments per month. The same day plaintiff shipped to defendant one barrel containing 398 pounds; and seventeen days later, on July 7th, he shipped another barrel containing 501 pounds,, making a total delivery of 899 pounds. Defendant requested plaintiff to delay further shipments until the goods delivered were paid for, and no further goods were delivered. In an action against the surety for the price of the goods shipped, defendant contended that the delivery of the second barrel within seventeen days from the delivery of the first was a sufficient departure from the terms of the contract to release him from liability. Held, (1) that defendant’s agreement was sufficiently broad to cover payment for all goods included in the contract amounting to 600 pounds monthly, (2) that defendant was not released from liability by reason of the fact that in the first month more than 600 pounds had been delivered where all the goods called for by the contract had not been shipped, so that it could not be said that he was required to pay for more than he had agreed to pay, and (3) a judgment on a verdict for plaintiff, for the price of both barrels will be sustained.</p>