Truitt v. Guenther Lumber Co.

Citations

• 73 Pa. Super. 445
• 1920 Pa. Super. LEXIS 35

Syllabus

<p>Contracts — Sales—Breach of contract — Installment delivery — i Failure to pay — Refusal to further deliver.</p> <p>Where the consideration of the contract is single, the contract is entire, whatever the variety of items embraced in it, but where the consideration is apportioned expressly or impliedly to each of the items, the contract is severable. If by a contract the goods are to be paid for at each delivery, the refusal to pay for any one delivery, without sufficient cause, authorizes the rescission of the contract.</p> <p>In an action of assumpsit to recover the balance due for lumber sold and delivered on various orders given at various times, the defense was that the plaintiff had'failed to make delivery in accordance with the terms of the contract, and that the defendant was, therefore, justified in refusing payment. Under such circumstances the case was for the jury to pass upon the good faith of the plaintiff in refusing further deliveries because of the failure on the part of the defendant to make settlement, and it was error for the court to charge, as matter of law, that such failure to pay within the period fixed by the contract for lumber already delivered would not excuse the plaintiff from the duty to make other deliveries.</p> <p>The intention of the parties with respect to performance disclosed by the testimony and the documentary evidence was to be taken into consideration in ascertaining the rights of the parties. The question was not one, therefore, purely of law, but should have been disposed of on the facts as disclosed in the evidence.</p>