69 N.Y.S. 7 | N.Y. App. Div. | 1901
This is an action brought to recover possession of a horse, wagon and harness of the value of $150, title to which, upon the trial, was admitted to be in the plaintiff. At the time plaintiff purchased this
It developed upon the trial that the plaintiff, at the time of making the purchase, knew that something was due to the defendant for the keeping of the horse and equipment, which amount, he understood, to he about $8.50. This, through his attorney, he offered to pay, but was met on the part of the defendant with a bill,- made up of various charges, some of which could not have been liens upon the property of the plaintiff, aggregating something over $200, and an absolute refusal to deliver the property except upon the payment . of the entire bill. There was a conflict of evidence upon the question of a tender having been actually made, though the defendant himself admits that plaintiff’s attorney came to him proposing to-liquidate the claim of the latter. Plaintiff’s attorney requested the trial judge to charge the jury that “ if the defendant demanded $221, and the jury find that he held a lien only for $8.50 or $58.50, either one, that was an unreasonable demand, and there was no neeesssity for a tender.” The court responded: “ I think not; the burden was the other way, because you allege he had a lien.” It nowhere appears that the plaintiff had made any such allegation, and if he had, we are unable to discover its relevancy to the request of the plaintiff. While it was no doubt incumbent on the plaintiff to show that he had offered to discharge any lien which the defendant might have upon his property, yet the law does not hold to the doing of a vain thing. It calls for fair dealing, and asks. of each party that he shall give the other plainly to understand just what position he takes, and just what he means to do, if the other acts this way or that. If that is beyond all doubt effected, the law does not exact that it be reached in a prescribed . and exact method. (Lawrence v. Miller, 86 N. Y. 131, 137.) If the defendant undertook to demand of the plaintiff a sum which he had no. lawful right to exact, refusing to deliver the property except upon condition of the payment of this sum, it was not neces
It is very evident from the evidence that the defendant undertook to force the plaintiff to pay, not only the lien which existed, but various other claims which the defendant held against the Leahy & O’Brien Company, which had formerly owned the property; this the jury has practically found by its verdict for twenty-nine dollars and tifty cents in favor of the defendant, and we are of opinion, under the circumstances of this case, the defendant having failed to disclose to the plaintiff, who was not in a position to know, the amount of the lien, that the jury should have been charged as requested. The defendant could not refuse to disclose the exact amount due under the lien and make a demand for a sum largely in excess of that amount and then be protected in his wrong by the fact that an actual tender of the sum due was not made.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order of'the County Court of Kings county reversed and new trial granted, costs to abide the event.