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56 Pa. 100

Kunkle v. Mitchell

Supreme Court of Pennsylvania

Decided November 7, 1867

Supreme Court of Pennsylvania · decided 1867-11-07

<p>1. Mitchell agreed to deliver timber to Kunkle “ on the cars at Indiana.” Held, that the cars Avere to be provided by Kunkle, and it was his duty to show that he was ready to provide them, and to notify Mitchell of his willingness.</p> <p>2. “Bach car-load [was] to be paid for as soon as delivered at Indiana station.” Held, that Kunkle had no right to demand delivery till he paid or offered to pay for the timber.</p>

Key passage — most relied on by later courts

““This is the controlling clause as to the place of delivery. The cars would be either the cars of the plaintiff [purchaser], or those of the railroad company, and in either case they were to be provided by the plaintiff, and not by the defendant. The cars, therefore, being to be provided by the plaintiff, the duty was imposed upon him to show he was at least ready with the cars, or willing to provide them, and to have notified the defendant of such readiness and willingness.””

quoted by 1 later decision, including Davis v. Alpha Portland Cement Co.

Good law ✅— No negative treatment on recordhow we know

Decided 1867-11-07

How this case has been cited

Cited by 12 later decisions — most recently April 1939

2 federal appellate · 2 district · 6 state decisions

6018671870188018901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1The opinion of the court was delivered, November 7th 1867, by

Read, J.

¶2This is an action of covenant to recover damages for the non-delivery of lumber. The article of agreement between the plaintiff and defendant is dated December 27th 1862, by which the defendant, Mitchell, agreed to “ deliver on the cars at Indiana 75,000 feet of lumber at eighty-five cents per hundred feet.” This is the controlling clause as to the place of delivery. The cars would be either the ears of the plaintiff or those of the railroad company, and in either case they were to be provided by the plaintiff, and not by the defendant. The cars, therefore, being to be provided by the plaintiff, the duty was imposed upon him to show he was at least ready with the cars or willing to provide them, and to have notified the defendant of such readiness and willingness. Then follows a specification of the kind of lumber to be delivered. “ Each car-load of lumber is to be paid for as soon as delivered at the Indiana Station, on the Pennsylvania Railroad. The said Mitchell is to have from the date of this agreement until the first day of June, A. d. 1863, in which to deliver said lumber, and he also agrees to deliver two car-loads each month.” On this agreement is endorsed a receipt for $150, a cash payment on the day of its execution. Lumber was delivered covering this amount. The remaining car-loads were not delivered, nor was it in proof that any were delivered at the Indiana Station.

¶3The plaintiff, therefore, seeking to recover damages for the non-delivery, must show that he had done all that was required of him by the contract. The plaintiff neither paid nor offered to pay, nor did he provide cars, nor offer to provide ears, nor express his willingness and readiness to do so, nor did he ever notify the defendant that cars were at the station ready to receive the lumber, nor was there any demand by the plaintiff on the defendant to deliver the lumber.

¶4He claims to recover simply on the ground that the lumber was not delivered at the Indiana Station. Under these circumstances the plaintiff is not entitled to damages.

¶5The verdict is therefore right, and the charge is substantially correct under the facts in the case.

¶6Judgment affirmed.

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