Mills v. . Huggins
Supreme Court of North Carolina
Assumpsit, upon an express contract by the defendant, to receive a quantity of pork from the plaintiff, and to pay the stipulated price in good promissory notes. Plea — non assumpsit. The plaintiff having made out his case, the defendant proved, that after the delivery of the pork, he offered to pay the price in notes, which the plaintiff refused, insisting upon having some cash with them.
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Assumpsit, upon an express contract by the defendant, to receive a quantity of pork from the plaintiff, and to pay the stipulated price in good promissory notes. Plea — non assumpsit. The plaintiff having made out his case, the defendant proved, that after the delivery of the pork, he offered to pay the price in notes, which the plaintiff refused, insisting upon having some cash with them. His Honor Judge .Strange charged the jury, that ability as well as willingness in the defendant, at the time of making the offer, was essential to his defence, and that unless they were satisfied that at…
1Opinion of the Court
Henderson, Chief-Justice
Ordinarily, nothing' less than actual performance satisfies an engagement to do an act. But in acts which require the concurrence of both parties, if one party does all he can to perform his engagement, and the act remains undone, merely for the want of the concurrence of the other party, the party doing all in his power is entitled to the benefit of an actual performance. I speak not now of the semper paratus, and the profert hie in curia. They arc incidental to some, and not to all engagements. It must therefore be the non-concurrence of the other party Which…
2Cited by3 opinions
- Alabama Water Co. v. City of AnnistonSupreme Court of Alabama · 1933
- City of Bremerton v. Bremerton Water & Power Co.Washington Supreme Court · 1915
- Thompson v. . GaylardSuperior Court of North Carolina · 1801