North American Oil Co. v. Forsyth Brothers & Co.
| Citation | 48 Pa. 291 |
| Court | Pennsylvania Supreme Court |
| Decision Date | 01 January 1864 |
| Parties | The North American Oil Company versus Forsyth Brothers & Co. |
Thomas Mac Connell and Robert Woods, for plaintiffs in error.
George P. Hamilton and George Shiras, Jr., for defendants.
As we read this record the court below presented to the jury two questions of fact, to wit: Whether the plaintiffs were diligent in paying for the oil already delivered, after the notice of rescission; and whether they evinced their readiness in the future to perform their contract according to its terms.
Having stated that after a mutual departure from the rigidity of performance, neither party could declare a rescission for past acts, the court said: "The legal effect of the notice of 14th September was, that if plaintiffs did not pay up arrears for oil already delivered, and thereafter pay as delivered according to the contract, the defendants would hold themselves discharged from any further obligation to perform on their part." This prepared the way for the final instruction immediately following, to wit:
To manifest an intention to hold to their contract and perform it in future, in view of the preceding instruction and the alternative presented in the following sentence, can mean nothing else than to exhibit to the defendants the intention to pay for the oil in future on delivery. The alternative instruction, which is expository of the former, runs thus: "On the other hand, if the plaintiffs did not so act, but by their conduct or declarations exhibited a disposition from which it might be inferred they would not pay for the oil as delivered in future, or would not comply with their part of the contract * * * then the plaintiffs are not entitled to recover."
There is a distinction between a willingness to pay and readiness; and the latter may be tested by the production of the money or an offer to pay it. But in this case readiness was not to be tested solely in that way. Neither a tender nor an offer to pay can be required as the legal measure of the proof of readiness in a case where the article is deliverable in lots uncertain in quantity and in time of delivery, implying notice of readiness to deliver, and where inspection of quality and measurement by gauging are prerequisites to payment. Readiness to pay in such a case necessarily falls back upon the intention to pay, as manifested by the conduct and declarations of the party. It was only by manifesting the intention to pay the plaintiffs could evidence their readiness.
The jury, under the charge, have found that the plaintiffs...
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Commonwealth v. Heller
...of the court to enter a contrary judgment on the ground that the evidence was insufficient is gone. North American Oil Co. v. Forsyth, 48 Pa. 291; Butts v. Armor, 164 Pa. 73, 81, 30 A. 357, 26 L.R.A. 213. * * "The authority to reserve questions of law for the consideration of the court in b......
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McCreary v. Bomberger
......Eldred Twp.,. 110 Pa. 1; Patton v. R.R., 96 Pa. 173; North Am. Oil Co. v. Forsyth, 48 Pa. 291; Chandler v. Ins. Co., 88. Pa. 223. ......
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Fulton v. Lancaster County
...... Judgment affirmed. . . Cyrus. G. Derr and Hugh M. North, George A. Lane, E. K. Martin and. George F. Baer with them, for ... insufficient to establish it: North American Oil Co. v. Forsyth Bros., 48 Pa. 291. Where there is evidence. ......
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Butts v. Armor's Estate
...... insufficient:" Oil Co. v. Forsyth Bros. & Co.,. 48 Pa. 291; Patton v. R.R., 96 Pa. 169. . . ... reversed the court below in North American Oil Co. v. Forsyth, 48 Pa. 291. The court there submitted the. ......