Russell v. . Stewart
Supreme Court of North Carolina
Assumpsit, tried before Logan, J., at Spring Term 1870 of Mecklenburg Court. The plaintiff testified that in the Fall of 1862 he had contracted to deliver to the defendant, at his mill, within two or three weeks, one hundred bushels of wheat, nothing being-said as to the currency in which the price was to be paid, but he expecting to receive Confederate money; that he delivered fifty bushels at one wagon load, and in about a week afterwards carried the remainder to the mill…
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Assumpsit, tried before Logan, J., at Spring Term 1870 of Mecklenburg Court. The plaintiff testified that in the Fall of 1862 he had contracted to deliver to the defendant, at his mill, within two or three weeks, one hundred bushels of wheat, nothing being-said as to the currency in which the price was to be paid, but he expecting to receive Confederate money; that he delivered fifty bushels at one wagon load, and in about a week afterwards carried the remainder to the mill (defendant being absent) and offered to deliver it if defendant would pay him three dollars per bushel in specie, but…
1Opinion of the CourtSettle, J.
The plaintiff was the only witness, and,, upon his own showing, the contract was executory and entire. He agreed to deliver to the defendant, at his mill's, one hundred bushels of wheat, at the price of three dollars per bushel. He only delivered 50 bushels. The law is well established in this State, that, “ where a contract is entire, and not made divisible by its terms, one of the parties cannot take advantage of his own default, either from laches or from wilful refusal to perform his part, for the purpose of. putting the contract out of his way, so as to enable him to maintain assumpsit…
2Cited by3 opinions
- Brown v. . MorrisSupreme Court of North Carolina · 1880
- Jones v. . MialSupreme Court of North Carolina · 1883
- Raby v. . CozadSupreme Court of North Carolina · 1913