Champlin v. Rowley

13 Wend. 258 | N.Y. Sup. Ct. | 1835

By the Court,

Nelson, J.

Unless we are at liberty to make a contract for these parties, it is perfectly clear, that beyond the $100 which was to be paid in advance, the defendant is not bound to make any payment towards the hay, until the whole quantity agreed to be delivered, viz. 100 tons, and all besides that the plaintiff had to spare, has been actually received by him. The residue of the price of the hay, after the payment of the $100, was to be paid when the whole quantity should be delivered. Such are the express terms of the contract, and we are not left to doubtful construction" to ascertain the intention of the parties. Whether any thing short of the act of the defendant himself could legally dispense with the performance of the precedent condition, is a qiiestion which we need not examine ; for it is clear that there is'nothing in the contract, or in the case as presented to us, which can have that effect. 19 Johns. R. 71. 6 Cowen, 627. 6 T. R. 211. The plaintiff assumed to deliver the whole quantity of hay previous to the last run of the sloops, and he must abide the consequences of his default. We know that it was possible to have performed the contract on his part. The case falls within principles familiar in this court, which inculcate the observance of good faith in the fulfilment of contracts. 12 Johns. R. 165. 13 id. 53, 94, 359. It is unnecessary to comment upon the English cases, as the subject now under consideration has frequently been presented to this court; and the principles applicable to it have been clearly stated and settled. Some of the cases relied upon by the counsel for the plaintiff have been referred to, and their authority repudiated by this court. The case, decided by Lord Hale, at the Norfolk assizes, 1602, is pronounced by Judge Spencer, in M'Millan v. Venderlip 12 Johns. R. 165, “ a very unreasonable decision.” In that case, Judge Spencer also noticed the qualification to the case of Waddington v. Oliver, 5 Bos. & Pul. 61, that the plaintiff had no right to bring an action “ until the time for the delivery of the whole had arrived,” and expressed his inability to perceive the grounds on which it rests ; and disregarded it in that case and in the subsequent cases, 13 Johns. R. 94., and id. 365. The modern case of Oxendale v. Wetherel, 17 Com. Law R. 401, is as exceptionable and as repugnant as the case decided by Lord Hale, to the principle of the cases determined in this court, and therefore cannot be regarded.

If the action could have been sustained upon the common counts, I have no doubt the defence offered in mitigation of damages would have been admissible and proper, within the principles of the case of Reab v. M'Alister, decided in the court for the correction of errors. 8 Wendell, 109.

New trial granted.