Allen v. Robinson

2 Barb. 341 | N.Y. Sup. Ct. | 1848

By the Court, Cady, P. J.

Whether the defendants had neglected to furnish all the necessary patterns in good order, and whether both parties had departed fróm the agreement, were questions of fact for the consideration of the referees; and as their report is according to the justicé and equity of the case, it is not to be disturbed; unless they have obviously violated some well settled rule of law. The defendants have received from the plaintiffs stoves of the value of $545,91, for which they have not paid a cent. And why should they be permitted to retain the stoves and not be obliged to pay for them ? The plaintiffs did not make and deliver to the defendants sixty-six stoves per month from the first of July, 1846, to the first of January, 1847; but as the defendants settled with and paid the plaintiffs for all the stoves which were made and delivered on or before the first day of December, 1846, they cannot be allowed to refuse to pay for the stoves which they received after that day, on account of any previous default of the plaintiffs. The plaintiffs were not bound to make and deliver to the defendants any number of stoves, unless the defendants did on or before the first day of that month request and specify the size and number of stoves to be made during that month. There is no evidence in the case that the defendants, on or before the first day of December, 1846, gave the plaintiffs notice of the size and number of stoves to be made in that month. This was a condition precedent, to be performed by the defendants before the plaintiffs were bound to make and deliver a stové. The plaintiffs had a right to insist that the defendants should receive at least sixty-six stoves per month; but they were not bound to make and deliver any more than the defendants requested. As to the month of December, 1846, there is no default on the part of the plaintiffs proved, and no default is to be presumed, in order to work a forfeiture of all the stoves delivered in that month. On the first of September, 1846, the defendants wrote and put in the post office at Troy, a notice addressed to the plaintiffs, that they should want, upon their contract, within that month, two hundred and forty-one stoves. That number was not made and delivered in that month; nor were the plaintiffs obliged to comply with such a request. When the defendants wanted more than sixty-six in a month, they were to give a month’s notice. This was not such a notice. But another answer has already been given. The defendants accepted and paid for the number made in September, 1846. Another ground of forfeiture has been urged. That the plaintiffs did not, on the first day of January, 1847, redeliver to the defendants the patterns which they had received from them. The performance of the plaintiffs’ agreement to return the patterns after the expiration of the contract, was not a condition precedent to the payment by the defendants for the stoves they had received. The payment for the stoves was in no sense the consideration for the redelivery of the patterns. The agreement to redeliver the patterns was an independent agreement, for the non-performance of which the defendants may have an ample remedy.

The motion to set aside the report is denied.