The Plaintiffs brought an action to recover the price of certain slaughtered hogs they sold to the Defendant under a contract for both dressed hogs and live hogs. The Defendants presented the defense that the Plaintiffs violated their part of the special contract by failing to deliver the live hogs.
In contracts for the purchase of property where there is no stipulation for credit or delay on either side, the delivery of the property and the payment of the purchase price are each conditions of the other, and neither party can sue for breach without having offered performance of his part.
The Plaintiffs delivered 88 dressed hogs, and Defendant did not pay for them. The live hogs arrived five days later, but Plaintiffs sold them to third parties instead of delivering them to the Defendant. The Defendant insisted that the Plaintiffs could not recover for the dressed hogs because they failed to deliver the live ones.
The referee held that the Plaintiffs were entitled to recover for the dressed hogs, less the damages the Defendant sustained for Plaintiffs’ failure to deliver the live ones.
Was the contract entire in the sense that a delivery of the whole—the live hogs as well as the dressed meat—was to precede the payment for the latter?
No. Judgment affirmed.
· The difference in the kind of property, in the price, and in the time of delivery showed such a diversity in the two operations as to preclude any necessary or probable inference that the first one to be consummated by delivery was to be suspended, as to its liquidation, for the uncertain period that might elapse before the other would be ready for adjustment.
The Defendant could not refuse to pay for the dressed hogs that had been delivered on the ground that the Plaintiffs broke the contract with respect to the live ones.