27 Barb. 73 | N.Y. Sup. Ct. | 1858
This case is not a stranger to our courts, and what may be deemed a little remarkable, after having been twelve years upon its travels has come back again to the starting point, and is now just ready to take a new departure. It would be as unprofitable, as it is unnecessary, to "trace all its career in all the stages of its chequered history ; since the only point now presented is the sufficiency of the declaration; the defendant having demurred to the only two counts which are now before the court, notwithstanding the elaborate reasoning and the formidable array of authorities in the defendant’s points, the question is really a very simple one, and, as it seems to me, can easily be disposed of upon well settled rules of pleading.
The declaration is grounded upon the breach of a contract for the sale and delivery of butter and cheese, which was to be
It is insisted on the part of the defendant, that the contract to deliver, and the contract to pay, being mutual and dependent, there can be no recovery without an averment of performance, or a readiness to perform, on the part of the plaintiff; and this whether the other party is ready and willing to perform the contract on his part or not. Numerous authorities are cited to sustain this doctrine, which, as a general rule, may be conceded. But that is not the question in this case. The question is whether a party may not aver and prove a state of facts which will excuse the performance of a condition precedent on his part; and whether the excuse is not sufficient where it is alleged that the non-performance was occasioned by the act of the other party. Such seems to be the conceded rule in the three opinions which this case has already called forth.
Thus, Justice Morehouse, in the ease reported in 3 Barb. 614,15, speaking of the letter by which the defendant apprised the plaintiff that he had sold the cheese, says, “allowing this letter to be genuine, the plaintiff was not bound to place funds at Utica, to pay for the cheese, or to demand a delivery before bringing a suit for a violation of the contract. A demand is not required when it would be useless, or when the party has disabled himself from complying, or by his declarations and conduct, has furnished evidence from which to infer a waiver.”
The doctrine stated in the three opinions I have above cited seems to me not only sound in principle but well' sustained by the rules laid down and the language held in many adjudged cases. Thus in Fleming v. Gilbert, (3 John. 528,) the question was on the strict performance of a condition precedent, and proof was given tending to show that a Eteral com
There is another class of cases where the principle is well settled that wherever a right of action by one party depends upon his demanding performance of some act, or the execution of some instrument, by the other party, a demand or an offer or a tender of the thing to be done, is unnecessary, if the party has disabled himself from performance, or gives notice that he will not perform. Such is the case of Franchot v. Leach, (5 Cowen, 506,) where one question was whether the vendor was bound to seek the vendee and tender a deed before bringing his action. It appeared that before the day appointed for the delivery of the deed, the vendee gave notice that it would be of no use to make the tender, for he should not fulfill, and the court clearly intimate that under this state of facts, no tender was necessary. To the same effect is the case of North v. Pepper, (21 Wend. 636,) in which it is held that in an action of covenant, where by the contract the consideration was to be paid and the convey
In Traver v. Halsted, (23 Wend. 66,) it is decided that a notice given by a purchaser of real estate to the vendor, previous to the day appointed for the execution of the conveyance, that he will not accept the conveyance, excuses the vendor from a strict performance on his part. (See also to the same effect, Blood v. Goodrich, 9 Wend. 68.)
So where A. promises to convey land to B. as soon as the latter shall pay A. a certain sum of money, and A. conveys the land to' a stranger, it is held that .B. is at once entitled to his action, without payment or tender of the money. (Newcomb v. Brackett, 16 Mass. Rep. 161.) In the opinion of the court a* very apposite case is cited from Yelverton’s Reports, 76, where the plaintiff declared on a promise to deliver on a given day 15 out of 17 tads of wool to be chosen by the plaintiff upon payment of &5, and averred readiness to pay, yet that the defendant had not delivered. Verdict for the plaintiff, but judgment arrested because it was not averred that the plaintiff had chosen the 15 tads out of 17, which was a condition precedent; but Popham, C. J., said if the defendant had sold one of the tads before the election to be made by the plaintiff that had destroyed the election, and made the promise absolute. “ The same law” he adds “ if the defendant would not have permitted the plaintiff to see the wool that he might make an election, for that had excused the act to be done by the plaintiff and had been a default by the defendant.”
These cases all speak one language, and are substantial applications of the rule, that where the non-performance of a condition precedent is occasioned by the act of a party either disqualifying himself for performing on his part, or by his giving-notice that he will not perform, the party seating his
Bacon, W. F. Aden and Mullin, Justices.]
I think both counts are good, and that the judgment appealed from, should be in all things affirmed.