Action to recover damages for breach of contract. Defendant having denied liability, set up counterclaim for damages by reason of breach of same contract by plaintiff.
On facts stated in the pleadings, with certain admissions formally made by the parties, the court below sustained a demurrer ore tenus to plaintiff's cause of action and to defendant's counterclaim, and both plaintiff and defendant excepted and appealed.
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE HOKE. PLAINTIFF'S APPEAL. Plaintiff alleged that on the first of October, 1909, plaintiff and defendant entered into a contract whereby plaintiff was constituted, for two years, sole agent for the sale of "Burriss patent metal shingle," which defendant was to manufacture and supply on orders from plaintiff at a specified price per square. That defendant had failed to supply shingles, as stipulated, to plaintiff's great damage, and on 31 October, 1910, present suit was instituted to recover for said breach of contract.
Defendant having duly denied liability, set up a counterclaim for breach of the same contract, and alleged that defendant had made the contract as stated and had entered on the manufacture of said shingles in North Carolina under a license from John T. Burriss, the patentee. That having small capital, they were dependent on amount of shingles sold for means of carrying on the enterprise. That the contract, made an exhibit of the complaint, required that plaintiff should make proper effort to put the product on the market and to furnish orders to (445) "an amount not less than 5,000 squares per annum." That plaintiff the first year had only obtained orders for 2,080 squares of said shingles, and by reason of such failure and refusal on the part of the plaintiff to comply with the terms of the contract to give orders for the number and amount of shingles called for in the contract and to take such number, defendant suffered great financial loss, its business was broken up, etc., and defendant was thereby compelled to suspend business and relinquish its rights under its contract with Burriss, etc.
When the cause was called for trial there was formal admission made by defendant, treated as an additional averment in the complaint, "that as a matter of fact plaintiff had only succeeded in procuring orders for 2,080 squares of shingles for defendant for the first year, to wit, on or before 10 October, 1910," and on such admission, in connection with the other facts shown in the pleadings, and on perusal of the contract, we think his Honor correctly ruled that no recovery by plaintiff was permissible. The case presented an action for breach of a contract having concurrent stipulations, and where, in order to a recovery, there must be allegation and proof of a readiness and ability to perform by the party seeking relief.
In Ducker v. Cochran, 92 N.C. pp. 597-600, Chief Justice Smith, delivering the opinion, said: "The proposition is too plain to need any reference to authority in its support, that a party to a contract cannot maintain an action against another for its breach, without averring and proving performance of his own antecedent obligations or some legal excuse for nonperformance, or, if the stipulations are concurrent, his readiness and ability to perform." This statement has been quoted *Page 364 with approval in Corinthian Lodge v. Smith, 147 N.C. 246; Tussey v. Owen,139 N.C. pp. 457-461, and the principle is one very generally recognized in our decisions. Wildes v. Nelson, 154 N.C. 590; Hughes v. Knott,140 N.C. 550.
There is no error, and the judgment of his Honor sustaining the demurrer must be
Affirmed.
DEFENDANT'S APPEAL.