Legal Opinion

Keeler & Co. v. Schmertz

Supreme Court of Pennsylvania

Decided November 5, 1863PublishedCited by 3 opinions

Error to the Common Pleas of Allegheny county. This was an action of assumpsit brought, December 1862, by Robert O. Schmertz and James Blakely, doing business as Schmertz & Blakely, against J. E. Keeler, W. A. McClurg, and - Johnson, partners trading as J. E. Keeler & Co. The plaintiffs claimed under the following -contract:— “ Pittsburgh, Sept. 18th 1862. “ Received of Schmertz & Blakely, their notes at four months, with interest, for $200. We agreeing to furnish forty…

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Error to the Common Pleas of Allegheny county. This was an action of assumpsit brought, December 1862, by Robert O. Schmertz and James Blakely, doing business as Schmertz & Blakely, against J. E. Keeler, W. A. McClurg, and - Johnson, partners trading as J. E. Keeler & Co. The plaintiffs claimed under the following -contract:— “ Pittsburgh, Sept. 18th 1862. “ Received of Schmertz & Blakely, their notes at four months, with interest, for $200. We agreeing to furnish forty barrels of white oil that will, stand a temperature of 120. Fifteen barrels of said oil having been delivered in store this…

1Opinion of the Court

The opinion of the court was delivered, November 5th 1863, by

Thompson, J.

The contract out of which this dispute has arisen, presents a clear case of mutual and dependent stipulations, to be performed concurrently. “ The balance of said oil,” says the contract, “ to be paid for so soon as all the oil shall have been delivered.” This is an equivalent expression to saying “the oil to be paid for on, or when, it shall be delivered.” Adams v. Williams, 2 W. & S. 227, rules such stipulations to be mutual and dependent.

In such case it is the duty of the party seeking to enforce performance by the…

2Cases cited1 opinion

  1. Adams v. WilliamsSupreme Court of Pennsylvania · 1841

3Cited by3 opinions

  1. Barnes v. ReaSupreme Court of Pennsylvania · 1908
  2. Niagara F. Ins. v. Fidelity Co.Supreme Court of Pennsylvania · 1889
  3. Walsh v. Powell, Pennsylvania Court of Common Pleas, Delaware County1951

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