45 N.Y. 151 | NY | 1871
The contract of the defendant calls for the payment of $1,000, within the year 1865, or in default of such payment a reassignment of the patent. There is no time fixed for the performance of the last alternative, and it follows that it must be done on request. Upon a failure to pay the money within the time limited, the plaintiff acquired the right to demand a reassignment of the patent, and if not reassigned he could recover the value of it, and if it was worth more than the sum agreed upon, the defendant would be compelled to pay the value. The plaintiff was not compelled to accept the money after the expiration of the year. During the year, the option was with the defendant, after that, the plaintiff had a right to insist upon the reassignment of the patent.
The defendant offered to reassign the patent, and this was all he was bound to do. The defendant had the whole year in which to pay the money, and his promise was that, if he did not make the payment within the year, he would on request reassign the patent. There was no breach of the contract, and the judgment should be reversed and a new trial granted, costs to abide event.
CHURCH, Ch. J., and FOLGER, RAPALLO and PECKHAM, JJ., concurred.
GROVER, J., was for reversal on the ground of exclusion of evidence as to the validity of the patent. PECKHAM, J., also thought this exclusion erroneous.
ANDREWS, J., took no part.
Judgment reversed.
