108 N.Y. 232 | NY | 1888
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We must assume that the sale of iron alleged in the defendants' counter-claim was an executory sale, as that is the fair and just inference from the facts alleged. The plaintiff was a manufacturer of iron, and the contract of sale was made on the 8th day of December, 1879. It covered nine hundred tons of iron, and it was to be delivered in the future as and when the defendants ordered it to make delivery. There is no allegation that the plaintiff at the time of this sale had the identical nine hundred tons of iron on hand, or that that quantity was separated from other iron. It would be against all experience, and certainly against the usual course of business, to suppose that the manufacturer had the iron on hand, and that upon its purchase by the defendants, it was separated and set apart and stored for them. It is reasonable to suppose, and as all the *236
facts were submitted to the court, neither party asking to have them submitted to the jury, the court had the right to draw the inference that the iron was to be thereafter manufactured, weighed, designated and delivered; and thus this was an executory contract of sale. In such a case the fact of payment has very little significance. It is sometimes a controlling fact to show that the sale was not executory and was completely executed. It is always evidence upon that question, but in a case like this is not important. The price of property purchased may be paid, and yet the contract of sale in every sense be executory. Treating this then as an executory contract of sale, the defendants are not in a position to complain of the quality of the iron, because they never offered to return it, and never gave the plaintiff notice or opportunity to take it back. They must therefore be conclusively presumed to have acquiesced in the quality of the iron. (Hargous v. Stone,
The judgment should be affirmed, with costs.
All concur except ANDREWS J., not voting.
Judgment affirmed. *237