13 Daly 464 | New York Court of Common Pleas | 1886
[After stating the facts as above].—The plaintiffs made out their cause of action upon an account stated. They were only required to show that the account had been delivered and retained without objection, or to show such circumstances as justify an inference of assent to it (Stenton v. Jerome, 54 N. Y. 480; Quincey v. Young, 63 N. Y. 370,377). The plaintiffs proved a written promise of defendant and acknowledgment of indebtedness to the amount claimed, and the deposition of plaintiff Botturn proved the delivery of an account. The answer alleged the presentation of the account and the promise to pay in installments as convenient, and the agreement that defendant should be allowed a reasonable time within which to make the payments. The account stated was thus admitted. The' admission must be taken of course with the qualification stated in the answer.
Conceding that the plaintiffs agreed to receive the balance from defendant in installments when convenient, and that he should have a reasonable time to pay, the plaintiffs were entitled to judgment, because no defense under this agreement was made out. An agreement that the debtor shall pay when convenient is an agreement to pay within a reasonable time (Howes v. Woodruff, 22 Wend. 640). The question as to what is reasonable time is a question of law unless the facts are disputed (Roth v. Buffalo &c. R. R. Co., 34 N. Y. 548). There were no disputed facts in this case.
What is a reasonable time within which to pay a sum of money depends upon the circumstances of the case, but does not depend upon the ability of the debtor to earn or make the money. It has been said that the law presumes that the debtor does not require more than a business day to pay a sum of money which he has contracted to pay
The trial judge did not err in refusing to hold or charge that the transactions between plaintiffs and defendant were void, as being in violation of the statute against gaming and betting. He submitted to the jury the question whether the parties intended to deliver the merchandise bought and sold, in good faith. The plaintiffs swore that they transmitted the defendant’s orders to Chicago, where the sales and purchases were made in the Chicago Board of Trade, and that they acted as brokers for defendant. The plaintiffs’ evidence required this question to be submitted to the jury.
The judgment and order appealed from should be affirmed, with costs.
Larremore, Ch. J., and Van Hoesen, J., concurred.
Judgment and order affirmed, with costs.