25 N.Y. St. Rep. 859 | City of New York Municipal Court | 1889
The expert evidence sufiiciently established the facts that the quality of the beans corresponded to that called for by the contract, and, if there was any question about it, it was one which ought to have gone to ■the jury. The question of weights was by consent reserved, and the sole question now involved is whether the trial judge was right in holding that the contract was entire, and that no recovery could be had until the entire 500 bags of beans were tendered. The beans were to be shipped in two parcels, •one month apart, and the defendants contracted to take each parcel as it arrived, on the terms indicated in the contract, “net cash.” The contract was "therefore clearly severable. Bach parcel was to be paid for on delivery. The delivery of the second parcel was not a condition precedent to plaintiffs’ recovery, but merely ground for recoupment, if the second delivery was not made. Tipton v. Feitner, 20 N. Y. 423; Talmage v. White, 35 N. Y. Super. Ct. 218; Aldrich v. Pyatt, 64 Barb. 391; Per Lee v. Beebe, 13 Hun, 89; Isaacs v. Plaster Works, 67 N. Y. 124; Withers v. Reynolds, 2 Barn. & Adol. 882. As ■the sale was for the delivery of two different parcels of goods, to arrive at different periods of time, each portion of the contract is complete, without ref•erence to the other. Swift v. Opdyke, 43 Barb. 274. Where the contract is silent as to the time when payment is to be made, the law will presume that the parties intended to make the payment of the price and the delivery of possession concurrent conditions. 2 Benj. Sales, §§ 897, 1016. The defendants were bound to accept each lot tendered, if the beans corresponded with the •contract, and we must assume they did, for that was withheld from the jury. The refusal to accept the first 250 bags released the plaintiffs from making any further tender. Canda v Wick, 100 N. Y. 127, 2 N. E. Rep. 381. For the reasons stated the judgment appealed from must be reversed, and a new trial •ordered, with costs to abide the event.