Pennsylvania County Court Reports Volume 28

Pennsylvania County Court Reports Volume 28

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1904 edition. Excerpt: was his duty to give the defendant due warning to that effect, and without such warning he could not insist on a literal compliance with its terms: Forsythe '11. The N. A. Oil Co., 53 Pa. 168. No such warning being averred in the statement, the second reason noted appears to be well grounded, and if this fact will prevent recovery then the plaintiff cannot recover. But is it essential, in order that the plaintiff may recover, that there be a rescission of the contract or full performance thereof on the part of the plaintiff? The answer to this involves a construction and determination of the legal effect of the contract. Is it an entire or a severable contract? This depends upon the intention of the parties as evidenced by the contract. In Lucesco Oil Co. 1/. Brewer, 66 Pa. 355, it is said, "It is the consideration to be paid and not the subject or thing to be performed that determines the class to which a contract belongs. Its entirety or separableness depends, not upon the singleness of its subject, or the multiplicity of the items composing it, but upon the entireness of the consideration or its express or implied apportionment to the several items constituting its subject. If the consideration is single, the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned, expressly or impliedly, to each of these items, the contract is severable." judged by the rule here indicated, the contract in suit is a severable one. and this is so by its express terms. The lumber was to be delivered by the plaintiff on the defendant's orders and the orders, when filled, were to be paid for in thirty days. So, concluding, the plaintiff may, independently of more

Product details

  • Paperback | 316 pages
  • 189 x 246 x 17mm | 567g
  • United States
  • English
  • black & white illustrations
  • 1236853709
  • 9781236853707