47 Barb. 574 | N.Y. Sup. Ct. | 1867
The money, which the action is brought to recover back, was paid by the plaintiff upon an executory agreement between himself and the defendants, for the sale and delivery by the latter to the former, of one hundred barrels of western whisky, at the expiration of thirty days from the date of the payment, at the price of $1.75 per gallon. The expression in the receipt which the defendants gave for the $1000 paid, “ abov.e to be carried thirty days,” must be construed to mean that the property bargained for was to be held for that period by the defendants, and then delivered to the plaintiff upon payment by him of the balance of the purchase price. The plaintiff, as the evidence on both sides shows, never paid, nor offered to pay the balance of the purchase money, and • never called for the whisky. The defendants, or those who were holding the whisky for them, carried it along until some time in September, when it was sold, without any notice to the plaintiff, at a loss upon the contract price, of $1745. The $1000 was paid by the plaintiff, and the receipt taken June 25, 1864, so that the thirty days expired on the 25th of July following. So far there is no dispute about the facts. But upon the other questions of fact in the case there is a conflict in the testimony. Whether the plaintiff can recover back the money thus'paid depends, as I understand the rule, entirely upon the question whether he first broke the contract, and refused to perform it on his part. If the seller, when the period for performance arrives, is ready to perform, and offers to perform on his part, and the purchaser neglects and refuses to perform on his part, either because he has mot the ability, or the price of the article bargained for has declined in the market, or for any
This case, as has been seen, turns altogether upon the question as to which of the contracting parties first broke and rescinded the contract. It is clear enough from the evidence that the subject of the agreement was sold by the defendants, or on their account, over a month after the time for final performance had passed, and at a large loss upon the contract price. .
The plaintiff, in his testimony, denies that he was ever called ujDon by the defendants, in any way, to take care of the whisky,-' or. notified that they could not hold it beyond the time specified, or that it was to be sold, or any thing of the kind. If this is true,xI do not see but that he is entitled to recover back the money advanced, according to the decisions before cited. He has not rescinded the contract, but it has been rescinded by the defendants, upon this state of facts. And in this view it makes no sort of difference whether they sold for less or more than the contract price. But this testimony is contradicted by the defendant, Beynolds, who testifies in substance, that whisky was declining in price in the market after the agreement, and that' he notified the plaintiff, about the time that the thirty days were up, that he must take care of the whisky, and that it could not be carried beyond that time ; that the parties who held it for the defendants could not hold it longer, but must sell it. Assuming this to be the true state of the case, I am of the opinion, in view of the peculiar facts and circumstances, and especially in view of the obvious situation of the property, a jury would have the right to say that the plaintiff himself put an end to the contract. It would he a question of fact for a jury whether the defendants did what was equivalent to an offer, or notice, that they were ready and willing to perform on their part, and that unless he, the plaintiff, per
It was clearly a disputed question of fact, upon the .evidence, as to which party wrongfully put an end to the contract; and the right of action depended upon the very question in dispute between the witnesses, in their testimony. I do not see, therefore, how the court could properly nonsuit the plaintiff.
The question does not arise here whether the sale was made properly, in affirmance of the contract, so as to give the seller the right to recover the difference between the amount at the contract price and the amount realized by the sale. That question is not in this case. If the plaintiff rescinded the contract, the defendants had the right to sell without notice to him or any one else, the same as though no bargain had ever been made. On the other hand, if, while the contract was subsisting, and in full force, the defendants, without any offer or notice to the plaintiff, sold the whisky or caused, or allowed it to be sold, to other persons, thus rendering per.formance on either side impossible, the contract was broken and rescinded by them, and the action is well brought. And in such a case it is not necessary for the plaintiff to prove any tender, or offer to pay, the purchase price. (Main v. King, 8 Barb. 535.) As the evidence upon the material questions in this case was wholly conflicting the plaintiff should not have been nonsuited, but the case should have gone to the jury. There must therefore be a new trial, with costs to abide the event.
Welles, E. Darwin Smith, and Johnson, Justices.]