(446) On trial of the cause there was admission formally made by defendant and treated as an additional averment on its counterclaim, that on 10 October, 1910, and for some time prior thereto, it had on hand ready for delivery only 800 squares of shingles referred to in the contract, and it would have taken thirty days from that date within which to have filled the order for the balance of the 5,000 squares of shingles which plaintiff contracted to give orders for during the first year of the contract. There is also the further admission in the answer that defendant is utterly unable to further comply with the contract. As we have just held in disposing of plaintiff's appeal, this is a counterclaim for breach of a contract having concurrent stipulations, and where, in order to a valid recovery, there must be allegation and proof of a readiness and ability to perform. We think the additional facts referred to could be very properly considered as an admission by defendant that it was not ready or able to perform within the time specified, and that recovery on the counterclaim was properly denied.
In Hughes v. Knott, supra, affirming the same case, in 138 N.C. 410, on a contract presenting practically the same question, the Court held:
"1. Where the defendants agreed to deliver a certain quantity of tobacco f. o. b. cars in Raleigh on 1 July, to the plaintiffs, who agreed to receive and pay for it at that time, and neither party was ready to comply on that day, but both were able to comply on 4 July, when the plaintiffs made a demand, which was refused, and there was no extension of time, plaintiffs are not entitled to recover the tobacco.
"2. Neither party to a contract can demand performance by the other without alleging and proving his own readiness to perform his part of the contract at the specified time and place."
The authority, in our opinion, is decisive, and the judgment sustaining the demurrer to defendant's counterclaim is
Affirmed. *Page 365
(447)