DEFINITION OF “SPECIFIC GOODS” UNDER THE SALES ACT.

Court of Appeals for Hamilton County.

Judge Richards of *the Sixth*District sitting in *the*place of *Judge*Hamilton.

#### W. N. Clark Co. v. Banner Packing Co.

Decided, December 15, 1919.

*Contracts*— Condition *Subsequent*— Sow *Pleaded*— “Specific *Goods” are Goods Already Made, and not Goods to be Manufactured to Specifications*— Buyer *Need not Allege Readiness to Pay for Goods not Delivered, When.*

1. A condition stipulated in a contract, on the happening or performance of which the contract already in effect may be defeated, constitutes a condition subsequent. In an action on a contract containing such a condition, the plaintiff need not allege that such condition has not happened. If the defendant relies upon it as a defense, he must allege and prove that it did happen.

2. Under the sales act, “specific goods” are existing goods agreed upon and identified at the time the contact to sell or a sale is made. The fact that goods to be made in the future must accord with specification does not make them “specific goods.” ' _ . ""

*2863. Where a buyer is not required under the terms of the contract to pay until ten days after delivery, he is not obliged to prove that ho was ready and willing to pay for goods that were never delivered.

*Milton Clark*and *P. H.*Rue, for plaintiff in error.

*Howard*W. *Ivins*and *Elzroth & Maple,*for defendant in error.

Shohl, P. J.

Heard on error.

In December, 3915, plaintiff in error, which was also the plaintiff below, entered into a contract on the printed form furnished by defendant,- whereby it agreed to purchase, and the Banner Packing Company agreed to deliver, 5,000 cases of canned corn at 60 cents per dozen, f. o. b. factory. Shipment was to be made as soon as packed and ready for delivery, terms *iy:i*per cent, off cash in ten days. ‘ ‘ In case of the destruction of the canning factory, seller is not liable for non-delivery.”

In 3916, when part of the corn had been shipped, the contract was modified by the parties by an agreement that the 2,000 cases then remaining undelivered should be furnished out of the pack of the following year, at the 1916 price.

In April, 1918, plaintiff brought suit alleging merely a contract for the delivery of the corn, and that defendant had packed sufficient corn to make delivery, and could have delivered it, but that defendant failed and refused to deliver any of the 2,000 cases, though plaintiff made demand and was ready and willing •to pay. Plaintiff prayed for damages for breach of contract.

Defendant in its answer set up that the agreement contained a condition that in case of the destruction of the canning factory, defendant would not be liable for non-delivery. It further alleged that'it completed its 3937 pack oh October ll’, 19i7';"that on October 14, 1917, a part of its factory, in which its pack for that year was stored, was totally destroyed by fire, thus render ing the corn unfit for market- and making it impossible to deliver the corn to plaintiff. In its reply plaintiff admitted the contract as averred by defendant; and -denied “that the canning factory, or any part thereof,'was;destroyed by fire .on the 14th.day of October, 1917, or at any óthér timé. ” "

*287A jury trial was had. There was some incidental reference to a fire in the testimony of officers of the defendant, given as if under cross-examination, pursuant to Sec. 11497, General Code. It may be noted that plaintiffs were not concluded by the testimony so given; but the evidence fell short' of establishing the destruction of the canning factory. At the conclusion of plaintiff’s testimony the court instructed the jury to render a.verdict in favor of the defendant, for the reason that the contract ivas conditional and plaintiff had failed to offer evidence tending- -to prove that there had not been a destruction of the canning factory.

The contract required'the defendant to furnish the com, f. o. b. factory, in 1917. . The provision as to the destruction of the factory stipulated a contingency on the happening of'which defendant should be discharged from liability. Such a condition is a condition subsequent, by the happening or performance of which a contract, already in effect, may be defeated. *Title Guarantee & Surety Co.*v. *Nichols,*224 U. S., 346, 351. In an action on a contract which refers on its face to such a contingency, the plaintiff need not allege that .such a contingency has not happened, but if the defendant' relies upon 'it as a défense he must allege and prove that it did happen. 9 Cyc., 727; 13 Corpus Juris., 718; *Smokeless Fuel Co. v. Seaton & Sons,*105 Va., 170 (52 S. E., 829); *Woofers*v. *International & G. M. Rd. Co.,*54 Tex., 294; *Root N. Childs,*68 Minn., 142 (70 N. W. 1087); *Hudson*v. *Archer,*4 S. D., 128, *136; Moody v. Ins. Co.,*52 Ohio St., 12. See also *Mumay*v. *Western & Southern Life Ins. Co.,*97 Ohio St., 1.

The court therefore erred in holding that the burden of proof in respect to the destruction of the canning factory was on the plaintiff. To prevent recovery on that ground the burden is on the defendant to show that there was a ! ‘ destruction on the canning factory.”

The case of *Leisy & Co.*v. *Zuellig,*(7 C. C., 423; 6 Circ. Dec. 175), cited to support the view of defendant, was one where there was an issue as to the existence of the contract claimed by plaintiff. In the ease at bar the contract stands admitted in the pleadings and there remained only the question of performance and excuse for non-performance of it.

*288It is contended, however, that the judgment of the court was correct, even if the reason assigned by it was erroneous. It is urged that the contract was one to sell specific goods, and that under paragraph 1 of See. 8388 G. C., the contract is avoided if the goods wholly perish. It might be sufficient to point out that the evidence did not establish that the goods wholly perished. The argument, however, is based upon an incorrect interpretation of the phrase “specific goods.” Specific goods are existing goods, agreed upon and identified at., the time a contract to sell or a sale is made. Section 8456 G. C., paragraph 1. The fact that goods are to be made in the future in accordance ivith specifications docs not render them specific goods. They are “future, goods.”

Defendant urges that plaintiff failed to prove that it was ready and willing to pay defendant as alleged. This must be considered in view of the sequence of performance fixed by the parties in their contract. Plaintiff was to receive the goods f. o. b. defendant’s factory, and was not required to pay till ten days thereafter. He was not obliged to be ready to pay until after defendant had made the shipment. Williston, Sales, Sec. 448.

The argument, therefore, that the judgment may be sustained for reasons different from those given by the trial court can not be sustained. The judgment will be reversed and the cause remanded for a new trial.

Cushing and Richards, JJ., concur.