Cole v. Swanston
California Supreme Court
Appeal from the court of First Instance of the district of San Francisco. The plaintiff, through his agent M. Dore, sold to the defendants on the 21st day of December, 1849, fifty thousand three hundred and twenty-five feet of lumber, then being, or supposed to be, on board of a ship in the harbor of San Francisco. The contract was in the form of a sale note, of which the following is a copy :—- “ Sold Messrs.
Read the full summary
Appeal from the court of First Instance of the district of San Francisco. The plaintiff, through his agent M. Dore, sold to the defendants on the 21st day of December, 1849, fifty thousand three hundred and twenty-five feet of lumber, then being, or supposed to be, on board of a ship in the harbor of San Francisco. The contract was in the form of a sale note, of which the following is a copy :—- “ Sold Messrs. Swanston & Taylor, 50,325 feet lumber, ex Duchess Clarence, for account Captain Cole, ® $150 per M. “ 21st Dec. 1849. M. Doee.” A portion of the lumber, amounting to 12,958 ft. -was…
1Opinion of the Court
By the Court,
Bennett, J.
The plaintiff sold to the defen*54dants 50,325 feet of lumber, being on board of his ship in the harbor of San Francisco, at the rate of $150 per thousand. The sale note specifies no time or place of delivery. Only a small part of the lumber was delivered, and this suit was brought to recover the price of the whole.
The delivery of the lumber, and the payment of the purchase money are by the contract concurrent acts. Neither party can maintain an action against the other for non-performance, without showing a readiness and willingness to perform on his part. (1 Chitty Gen.…
2Cited by10 opinions
- Gilfallan v. GilfallanCalifornia Supreme Court · 1914
- Pearson v. McKinneyCalifornia Supreme Court · 1911
- Lewiston Turnpike Co. v. Shasta & Weaverville Wagon Road Co.California Supreme Court · 1871
- Judson Manufacturing Co. v. LutgeCalifornia Supreme Court · 1917
- United Canneries Co. v. SeelyeCalifornia Court of Appeal · 1920
5 more not listed; retrieve them via the Exa API.