Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co.

Citations

• 89 Ohio St. (N.S.) 365

Syllabus

<p>Contracts — Sale of several articles for gross sum — Indivisible contract, when — Seller cannot recover until complete performance, when — Delivery of part not substantial compliance with contract, when — Rights of parties under contract stipulations as to delivery — Delivery to common carrier, deposit of bill of lading and requesting notes — Do not constitute delivery, when.</p> <p>1. A written contract for the sale of several articles of personal property for a sum in gross is indivisible except by subsequent agreement of the parties, and the seller cannot recover the contract price or any part thereof unless he substantially performs or tenders performance of all the terms of the contract \\ on his part to be performed.</p> <p>2. Under such a contract the delivery of a part of the personal property sold, equal in value to about one-third of the total contract price, is not a substantial performance on the part of the seller.</p> <p>3. Where a contract for the sale of personal property specifically provides for the manner and method of delivery, the seller has no right or authority to impose other or further conditions precedent to delivery than those named in the contract.</p> <p>4. Delivery of personal property to a common carrier, the bill of lading being taken in the name of the seller, and forwarded to a bank in a city other than the purchaser’s place of business, with the demand upon the purchaser that he execute and deliver to this bank for the seller, notes covering the entire purchase price before the bill of lading will be de'ivered to him, does’ not constitute a delivery or a sufficient tender ol delivery under a contract of sale of personal property, which provides for delivery f. o. b. car's at shipping point for shipment to the purchaser, and which further provides for the payment of one-fourth of the purchase price within thirty days after the arrival of the property on the cars at its destination, the residue thereof to be paid in four, eight ar