William Wilkens Co. v. Consolidated Agricultural Chemical Co.

Citations

• 27 Del. 423
• 4 Boyce 423
• 89 A. 5
• 1913 Del. LEXIS 58

Syllabus

<p>1. Contracts—Plea—Non Assumpsit—Effect.</p> <p>Under a plea of non assumpsit in an action on contract, defendant may prove in bar, not only that no promise was in fact made, but any matter which shows that plaintiff had no cause of action at the time of suit brought, as insufficient or illegal consideration, usury, fraud, duress, etc.; but he may not prove the happening of a condition subsequent in defeasance of an express contract, unless urged by special plea.</p> <p>2. Pleading—Demurrer to Plea—Effect.</p> <p>A general^ demurrer to a plea admits all matters of fact sufficiently pleaded, applying to the entire ground of defense as stated in the plea, and not to any specific defect therein, which could only be reached by special demurrer.</p> <p>3. Sales—Performance—Excuse—“Suspended”—Inability to Perform—“Interference”.</p> <p>A contract for the sale of wet hair waste, to be used by the buyer in the manufacture of fertilizer, provided that the contract was subject to suspension in case of fire or other unavoidable accident to machinery or works of the producers or users of the material, or any other “interference” by which they were prevented from producing or using the material. After part had been delivered the state board of health examined the buyer’s works, where the hair was ground in a mixer, which was the only manner in which it could be used. The buyer’s plant was found to be a nuisance because of odors arising therefrom, and an order was entered directing the buyer to abate the nuisance within a specified date, which prevented the further use of the hair. Held, that the word “ suspended”, as used in the contract, meant more than mere postponement, since it must have been the intention of the parties that the hair should be used by the buyer in accordance with its facilities, and, this having been prevented without fault on its part, there was “other interference” by which the buyer was prevented from using the material, relieving it from liability for