| N.Y. Sup. Ct. | Aug 15, 1824
Curia,
There are two questions arising in this cause :
1. Was Ogden a competent witness 3 or ought he not to have been joined with the plaintiff ?
2. Was the plaintiff bound to deliver the flour before he was paid for it ?
Ogden seems to have been a dormant partner with the plaintiff; but that fact was not known by the defendant at the time of the sale by Blood, the broker ; and the rule is well settled, that a dormant partner need not be joined in án action on a contract with a defendant who did not deal with him or know him in the transaction. (1 Chit. Pl. 7,8. 2 Esp. Rep. 468. 2 Taunt. 324, 326.) Ogden was a competent witness, having no interest, and not being a party to the suit.
The next question is whether the plaintiff was bound to deliver the flour, without first receiving pay for it. This was a cash sale. The delivery and payment should be simultaneous acts. A person’s check is no more payment than his note. He may have no funds in the bank On which he draws; or, if he has, the bank may be justified in withholding payment.
In Langfort v. Tiler, (1 Salk. 113,) the defendant-bought 81 tubs of tea, paid for and took away one, and paid £50 earnest. Holt, Ch. J. ruled that notwithstanding the earnest, the money must be paid upon fetching away the goods, no other time for payment being appointed ; that a demand without payment is void ; and that after earnest, the vendor cannot sell the goods to another without default in the vendee; and if the vendee does not come and pay and take away the goods, the vendor ought to go and request bim ; and then if the vendee does not come in convenient time, and pay and take away the goods, the agreement is dissolved, and he is at liberty to sell them to any other person.
I am of opinion, therefore, that the motion must be denied, and that the plaintiff have judgment.-
Motion denied.