4 Barb. 36 | N.Y. Sup. Ct. | 1848
The court below received in evidence a rule setting aside the judgment record filed in the replevin suit. This evidence was objected to by the defendant as incompetent evidence to disprove the existence of the judgment; the vacatur of the judgment not having been enrolled or entered of record. The objection to this evidence, I think, was well founded. The entry of a rule upon the minutes of a court cannot be received as evidence against a record. It is
If the judgment entered in the replevin suit has been set aside, I see no real difficulty to prevent Dunlop’s recovery in that suit of the value of the 1370 bushels of malt. The verdict in his favor stands. And I take it for granted that upon that verdict he will be permitted, upon application to the court, to enter up a judgment for the return of the malt replevied. His plea of non-detinet put in issue the property of the plaintiff therein, as well as the detention. (2 R. S. & 529, § 40.) This plea may be regarded as a substitute for a special plea of property in the defendant or a stranger, with a traverse of property in the plaintiff and a prayer for a return. (3 Chit. Pl. 1044, Spring/, ed. of 1847.) Although it omits the prayer for a return, I apprehend that this is only a matter of form. (Id.) A plea of property in the defendant, or in a stranger, entitles the defendant to a return, without an avowry. (Harrison v. McIntosh, 1 John. 384. 3 Wend. 672. 12 Id. 30. Bul. N. P. 54. Butcher v. Porter, Salk. 94. 6 Bac. Abr. 73, Replevin I.) The verdict in this case must have been founded upon the ground that the property in the malt was in Dunlop; which finding manifestly entitled him to a return. (Ingraham v. Hammond, 1 Hill, 353.) In Pierce v. Van Dyke, (6 Hill,
McKnight objected, in the court below, that the record of his recovery against Dunlop in the suit for the violation by the latter, of the special contract for the sale and delivery of malt, was a bar to his recovery in this suit, for the 1737|- bushels of malt, which were delivered,: in part performance of such contract; insisting that such record of recovery was conclusive evidence of such contract, and of its violation by Dunlop. This objection rests upon the solution of the question whether such special contract was an entire contract, operating as a condition precedent, and as such necessary to be performed by Dunlop, before McKnight was liable to pay to him any part of the price of the malt; or whether the agreement of McKnight to pay for the malt by his note at three months, whenever $1000 worth of the same should be delivered, is to be considered as a distinct agreement as to each 1000 dollars worth, and as independent of and unconnected with the residue of the malt to be subsequently delivered. If the latter, then Dunlop having delivered, under, and in part fulfilment of the contract, more than $1000 worth of malt, might be entitled to recover that sum from McKnight, although he violated the contract in failing to deliver the residue of the 5000 bushels of malt. The defendant, to succeed with his objection, must show, independently of the record, that the contract was entire, and that it was violated by the plaintiff; or that that question was directly in issue in his suit against the plaintiff for a violation of the contract, and that it came in question in that suit, and that the verdict therein necessarily involved its consideration and determination by the jury. It seems to me that the proof on these points is defective. There is no evidence in the case, aside from the record, of the terms of the contract. The plaintiff offered such evidence, but it was ruled out on the defendant’s objection. The plaintiff’s witness, Barber, merely states that there was a dispute between the plaintiff and defendant in relation to the violation of a contract for the delivery of malt; that the defendant sued the plaintiff for the violation
If the terms of the special contract were, as offered to be proved by the plaintiff on the trial, the question would arise (the former suit being out of the question) whether Dunlop could, in an action against McKnight, recover for the first 1000 dollars worth of malt delivered under the contract, notwithstanding his subsequent violation of the contract by failing to deliver the residue of the 5000 bushels. He clearly could not recover the price of the residue of the 1737¿- bushels, the same not amounting to 1000 dollars worth. According to the special contract, as offered to be proved, the payment for the malt was to be made by the defendant’s note at three months, whenever 1000 dollars worth should be delivered. As soon as 1000 dollars worth of malt was delivered, the plaintiff could have called upon the defendant for his note for the same. If the defendant refused to give the note, the plaintiff could have immediately sustained an action against him for a violation of the contract. And if the defendant had given his note at three months, when it became due, the plaintiff could doubtless have enforced its payment by suit. But the defendant in such suit for a violation of the contract could have recouped bis damages sustained by the plaintiff’s non-fulfilment of the contrast. (Reab v. McAllister, 8 Wend. 116, 117, per Chan. Walworth.) Whether the plaintiff, after waiting until the time for the delivery of the malt had expired, and until after he had violated the contract on his part, by a failure to deliver the whole 5000 bushels, could commence a suit and recover the price of the first 1000 dollars worth of malt delivered, is questionable. Johnson v. Wygant, (11 Wend. 48.) seems to be against such recovery. In that case the defendant covenanted to pay the plaintiff, for land, $158, in three equal annual payments from date, and upon the payment thereof the defendant was to receive a good warranty deed for the land.
Covenants are to be construed to be dependent or independent, according to the intention and the meaning of the parties, and the good sense of the case. [Pordage v. Cole, 1 Saund. Rep. 320, note 4. 1 Wend. 328.) “ Their precedency” said Lord Mansfield “ must depend on the order of time in which the intent of the transaction requires their performance.” (10 John. 205.) If a day be appointed for the payment of money, or part of it, and the day is to happen or may happen before the thing which is the consideration of the money is to be performed, an action may be brought for the money before performance ; and so it is where no time is fixed for performance of that which is the consideration of the money. [Pordage v. Cole, 1 Saund. Rep. 320, note 4.) But if a day is appointed for the payment of the money, and the day is to happen after the thing which is the consideration of the money, is to be performed, no action can be maintained for the money, before performance. (1 Saund. Rep. 320, note 4. 4 Wend. 377.) In the present case it may be contended that the payment for the first 1000 dollars worth of malt delivered was to be made before the delivery of the residue of the malt, and that therefore the agreement to pay for this 1000 dollars worth was independent of, and unconnected with, the agreements to deliver and pay for the residue. In Cunningham v. Morrell, (10 John. 203,) where the plaintiff had agreed to complete a certain road on or before the 20th of October, 1810 ; and the defendant had agreed to pay him for completing the whole work, $6000, to be paid in instalments as the work progressed, it was held that the plaintiff might recover a ratable part of the money, upon showing a ratable performance. But I do not think the ques-
I think the court below erred in instructing the jury to allow the plaintiff interest. The evidence does not show that the malt was sold to the defendant for any fixed stipulated price. Barber does not testify that the account delivered by him to the defendant stated the price charged for the malt. He is particular to say that the defendant made no objection to the quantity stated in the account. But he does not state that the defendant assented to the charge of 80 cents a bushel, the sum claimed and recovered on the trial. This evidence does not make out a liquidation of the account. There was no evidence of an acquiescence in the account, from which a liquidation could be implied. When the defendant was applied to for a note, he refused to give it. And there was no evidence of an agreement, express or implied, to pay interest. Interest cannot be allowed on an unliquidated account for goods sold and delivered, where no time is fixed for payment, and where there is no agreement, express or implied, to pajr interest. (6 Comen, 195. 3 Id. 393. 20 Wend. 52.)
The judgment must be reversed, with costs, and a venire de novo issued, returnable in the mayor’s court of the city of Albany.