#### DOCTOR COLE vs. WILLIAM HESTER.

When the contract is for the delivery of a certain quantity of Tobacco, deliverable at a certain place and for a certain price, iu order to entitle the purchaser to recover for a breach of the contract, he must allege and prove that he was ready to perform his part of the contract.

Where it appeared that A. raised the Tobacco on his mother’s land, and was to have one sixth for his labor, &c.; *Held,*that A. was not a tenant in common with his mother, as to one sixth, and had no property in it or lien on it.

The case of *State*v. *Jones,*2 Dev. & Bat. 544, cited and approved.

Appeal from the Superior Court of Law of Franklin County, at the Spring Term, 1848, his Honor Judge Caldwell presiding.

*24This is an action of assumpsit to recover damages for the breach of a contract, because of the non-delivery of a crop of tobacco, alleged to have been sold by the defendant to the plaintiff in the winter of 1845.

Several witnesses testified that they heard the defendant say, he had sold his crop of tobacco to the plaintiff for four dollars per hundred, to be delivered at the Frank-linton depot. A witness, introduced by the plaintiff, testified that he went with him to the plantation of one Mrs. Hester, the mother of the defendant, and where he lived as an overseer, to see him in relation to the tobacco, about the 1st of April, 1845 ; that the defendant was prizing it; that the plaintiff said, “ are you going to let me have your Tobacco *1”*that the defendant replied, “ our contract was, that you were to get Kennedy’s Tobacco. and by the sale of it, get money to pay me, and as you failed to get it, I concluded to prize mine, and I shall go on with itthat the. plaintiff rejoined, that made no difference, for he could pay the money without getting Kennedy’s tobacco ; that the plaintiff then offered defendant twenty cents per hundred for the prizing he had done — to which the defendant did not assent.

Another witness, on the part of the plaintiff, testified, that, in March, 1845, the defendant came to the plaintiff’s factory at Franklinton — that witness said : “What! are you come to get off too *V’*the defendant said, “no, I have come to get tighter on that the plaintiff and defendant had a conversation to one side, and hr heard the plaintiff say to defendant, “as soon as I get Kennedy’s tobacco, prize it and send it off; I will be ready to take yours.” Several witnesses testified that tobacco had risen in price between the winter and 1st of April, 1845, and all proved that the defendant lived with his mother as an overseer and was to have the one sixth of the crop for his wages, and that he raised no other crop; also, that he had been acting as his mother’s agent and selling her crops for *25some two years, and that this was generally known in and about Franklinton. It also appeared, that, in the Winter and Spring of 1845, the plaintiff was reported to be in failing circumstances.

There was no evidence that the plaintiff had got Kennedy’s tobacco or any part of it.

The defendant insisted that bis obligation to deliver-the tobacco depended on a contingency, that had not happened, namely: the failure on the part of the plaintiff to get Kennedy’s tobacco ; and he was therefore not liable on this part of the case. And further, that the contract was made by him as the known agent of his mother, and the suit ought to have been brought against her. The plaintiff, on the contrary, insisted that the contract did not depend on any condition or contingency, that it made no difference if the plaintiff were able to pay when the tobacco was delivered. And, on the other *ground,*the plaintiff insisted that the contract was an individual one with the defendant; but, even if it were otherwise, he was entitled to recover for the non-delivery of one sixth of the tobacco, though there was no evidence that the crop had been divided and the defendant’s portion set apart to him. The Court charged that if it were the contract between parties, that the defendant must deliver the tobacco at Franklinton depot apart from any condition or contingency, it was the duty of the defendant to tender it there within a reasonable time ; and if he failed to do so, the plaintiff would be entitled to damages, the measure of which would be the difference between the contract price and the rise in the price, if any had taken place, and if no rise had taken place, plaintiff would be entitled to recover at least nominal damages- On the other point, the Court charged, if the contract were that the delivery depended on the plaintiff’s getting Kennedy’s tobacco, prizing it and selling it off, and the plaintiff had not procured said tobacco, the defendant would be en*26titled to their verdict. And the Court also charged, that if the contract were made with the defendant as the agent of his mother, that the plaintiff could not recover, even for the one sixth of the crop. The jury returned a verdict for the defendant.

A new trial was moved for and refused, and the plaintiff appealed.

*Busbee, McRae*and *Miller,*for the plaintiff.

*Gilliam*and *W. H. Haywood, for*the defendant.

Pearson, J.

The first proposition laid down by his Honor, is too general, and ought to have been qualified.

If the contract was unconditional, and the defendant had failed to deliver the tobacco, the plaintiff was entitled to recover, *provided,*he was ready and able to pay the price. The delivery of the tobacco and the payment of the price, were concurrent acts; and, to entitle the plaintiff to recover, it was necessary for him to aver or prove that he was ready to perform his part of the contract. The plaintiff, however, cannot complain of this error as it was in his favor.

The second proposition, “if the contract was, that the delivery of the tobacco depended on the plaintiff’s getting Kennedy’s tobacco, prizing it and sending it off, and plaintiff had not procured said tobacco, the defendant would be entitled to a verdict,” is certainly true. There was some evidence tending to shew that the contract depended upon the plaintiff’s getting Kennedy’s tobacco, but the evidence was slight, and we cannot help thinkingj that if particular instruction had been asked for, and the attention of the jury had been directed to the distinction between what circumstances enter into and form a part of a contract, so that the contract may be said to depend on them, and what are merely collateral, the jury would have arrived at the conclusion, that the contract in this *27case did not depend upon the plaintiff’s getting Kennedy’s tobacco, so as to make that a condition precedent. If A. agrees to buy the tobacco of B. provided he can borrow five hundred dollars from C. the agreement is conditional; it depends upon A’s being able to brrow the money from C. But if A. agrees to buy the tobacco of B., and, by way of assuring B. that he will be able to pay for it, A. tells B. that he expects to borrow money from C., this is a mere collateral circumstance — the contract does not depend on it. It makes no difference how A. gets the money; it is sufficient if he has it ready.

This point does not seem to have been made at the trial, and is not presented by the case as made up; for which reason, the plaintiff cannot have the benefit of it.

The third proposition, “if the contract was made with the defendant, as the agent of his mother, the plaintiff could not recover, even for one sixth of the crop,” is unobjectionable. The mother owned the whole crop, the defendant was not a tenant in common ¿s to one sixth, he had no property in it or lien upon *it*— State v. *Jones,*2 Dev. & Bat. 544—and might well sell the whole as her agent, and look to her for his sixth part of the price.

Per Curiam. Judgment affirmed.