
    Bembridge and Another v. Stoddard.
    Action upon a written agreement whereby the defendant agreed to deliver to the plaintiffs a specified quantity of merchantable shelled corn, at Lafayette, within a designated period and for a specified price. Plea, that at the time of making the agreement, the plaintiffs agreed in writing with the defendant, that in consideration that the defendant would deliver to them at Lafayette said quantity of merchantable shelled corn, they would pay to the defendant said price per bushel, and furnish the defendant a thresher to thresh the corn, for 1 cent a bushel; and that they failed and refused, on request, to furnish the thresher, whereby the defendant was disabled from performing his contract, &c. Held, that the plea was sufficient.
    ERROR to the Montgomery Circuit Court.
    
      Saturday, December 31.
   Perkins, J.

Bembridge and Mix sued Stoddard for the breach of an agreement reading as follows:

“ Know all men by these presents that I, Oren Stoddard, of the county of Montgomery and state of Indiana, have this day sold to Bembridge and Mix, of Lafayette, Tippecanoe county, and state aforesaid, fifteen hundred bushels of good, sound, merchantable shelled corn, to be delivered in the warehouse of the said Bembridge and Mix in Lafayette, on or before the first day of October next, for which the said Bembridge and Mix do agree to pay the said Oren Stoddard twenty cents per bushel for said fifteen hundred bushels; and the said Bembridge and Mix do further agree to give to the said Oren Stoddard the privilege of putting into the warehouse aforesaid, two thousand bushels at the same rate per bushel, as witness our hands and seals this 17th day of September, 1846.”

LI. S. Lane and S. C. Willson, for the plaintiffs.

J. E. McDonald and II. E. Carter, for the defendant.

The defendant pleaded that at the time of making said agreement, the plaintiffs agreed in writing with the defendant, that in consideration that he would deliver to them at their warehouse in Lafayette the fifteen hundred bushels of shelled corn above mentioned, they, the plaintiffs, would pay said defendant 20 cents a bushel therefor, and would furnish to the defendant “ a thresher to thresh said corn for one cent a bushel;” and that they failed and refused, on request, to furnish said thresher, whereby the defendant was disabled to perform his contract, &c.

Demurrer to this plea overruled, and final judgment for the defendant.

The decision- of the Court below was right.

Taking the allegations in the plea to be true upon the demurrer, the furnishing of the thresher is shown to have been a part of the consideration of the sale of the corn, and a condition precedent to its delivery. The failure of the plaintiffs to perform that condition, excused the defendant from performing his agreement; and, indeed, probably disabled him to make performance. See Coe v. Smith, 1 Ind. R. 267.

Per Curiam.

The judgment is affirmed with costs.  