11 N.Y.S. 758 | N.Y. Sup. Ct. | 1890
The defendant has demurred to the reply interposed by the • plaintiff to the counter-claim on the ground that it appears upon the face thereof to be insufficient in law. In determining this question, it is insisted that all the pleadings should be considered and judgment given against the party who has committed the first error. In the case of Williams v. Williams, ante, 753, recently decided by this court', it was held that upon a demurrer to a defense,
The plaintiff brings the action as assignee of a right of action which arose upon contract in favor of his assignor, for the purchase and sale of certain bonds and stock. Upon a breach of the contract sued upon, the plaintiff’s assignor, or plaintiff himself, as assignee of the cause of action, could have sued, either claiming damages for the breach or brought an action in effect for the specific performance thereof. This latter is the remedy here sought, and is the theory upon which the plaintiff’s complaint has been framed. The defendant agreed to pay the sum of $1,700 in four installments of $425 each, for which he was to receive from plaintiff’s assignor, the Julian Electric Traction Company, two certain first mortgage bonds, of the par value of $1,000 each, and 20 shares of stock. One of the bonds and half of the stock were to be delivered when one-half of the amount, or two of the installments, were paid, as provided. When two installments were paid, one of the bonds and half of the stock were delivered to defendants. In addition, defendant paid the third installment, and then refused to pay the fourth, and it is to recover this fourth installment that this action is brought. It seems reasonably clear that, upon the payment of this installment, which would fully complete the contract on defendant’s part, the latter would be entitled to an additional bond and stock, as in the agreement provided. Unless upon the trial, plaintiff could show that he was ready and willing to perform the contract, and that he was able to deliver the bond and stock, I do not see how he would be