8 N.Y. 182 | NY | 1853
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *188 The motion for a nonsuit was properly overruled. The first ground suggested was clearly untenable. The plaintiffs were under no obligation to prove payment, or a tender of payment; it was enough that they were ready at the time and place appointed for the performance of the contract to receive and pay for the flour. (1 Hill, 523.)
The second reason assigned by the defendant in support of the motion was, that the plaintiffs had not shown that they or Wing were ready to pay for the flour in question; or that they had or could get New York funds for that purpose, at Albany or elsewhere.
As the proof then stood, the plaintiffs had directed the defendant, in pursuance of the contract, to deliver the flour to Wing, the consignee at Albany, and informed him that he would advance the price upon delivery. Wing was apprised of the agreement, and furnished with a copy, and he declared to his clerk that he was ready to pay for the flour if it arrived, and in confirmation of this declaration it was shown that he paid promptly all demands against him, and that he had facilities for raising money to any amount, sufficient to pay for 2000 barrels of flour This evidence was abundantly sufficient to take this question to the jury, and to authorize a finding in behalf of the plaintiffs. If the consignee was ready and able to perform the contract, we may presume that New York funds, or their equivalent, could be obtained at the capital of the state to an amount sufficient to pay for 2000 barrels of flour.
The second, sixth and seventh points, in relation to fraud *189 of the plaintiffs, and its effect upon an executory contract, are all disposed of by the response of the jury, that the defendant was not induced to sell in consequence of the representations of the plaintiffs, but that he sold independently of those representations, and uninfluenced by them.
The letter written by Wing to Tomlinson was properly received in evidence. The defendant had proved, on the cross examination of E.T. Bronson, the letter Wing had written to Tomlinson, and that Crocker had communicated to him its contents, to some extent; and that the witness did not tell the defendant when about to consummate the bargain, because it would not aid him in closing the contract. This evidence was designed to raise the presumption that the letter in question contained important information, which was fraudulently withheld from the defendant. The letter itself would show precisely the nature and extent of that information, and was therefore properly received in evidence.
Another objection made is, that the court erred in receiving and submitting to the jury the declarations of the defendant that he was satisfied with his bargain; that he made one dollar a barrel by the sale, and that the vendees were not certain of making any thing. There is no just ground for this exception. The declaration was made after the news brought by the steamer was matter of notoriety, and had unquestionably come to the knowledge of the defendant. Under these circumstances the statement of a party (who alleged fraud upon the part of the plaintiffs as an excuse for not performing his contract,) in reference to the sale embodying it may be well supposed, his own views in reference to the transaction were certainly competent evidence. Of its weight and effect the jury were the exclusive judges.
I think the judgment of the supreme court should be affirmed.
Judgment affirmed *190