Murphy v. Dernberg

82 N.Y.S. 585 | N.Y. App. Div. | 1903

PARKER, P. J.

The defendant concedes that he received the whisky from the plaintiff, and agreed to pay one-half the purchase price thereof, viz., $30.94; in hdrse hire. At that time he was keeping a livery stable in Rensselaer, which is a railroad center, and the plaintiff’s agent from time to time needed the use of a horse and carriage m his business of selling whisky through that, neighborhood. Inasmuch as no time was limited, by the terms of the bargain, in which the horse hire should be furnished, nor prices agreed upon, nor place •specified, the law infers that it was to be furnished and received within .a reasonable time, and at the place where the bargain was made and the defendant then kept his livery stable, and at the usual and reason.able prices charged for similar services., It does not appear that any •demand for such hire had been made by the plaintiff up to the time of the defendant’s removal from Rensselaer, but the decision of the justice is equivalent to a finding by him that a reasonable time to furnish the same had not then expired, and such conclusion should not be reversed on appeal. The defendant, then, while still obligated to furnish the horse hire at Rensselaer, removed himself- and his stable to a place 11 miles distant, and 4 miles distant from any railroad station; thus practically disabling himself from performing the contract on his ;part.

There is no pretense that he still maintained the ability to perform -at Rensselaer, because, after the removal, when discussing the subject •of the plaintiff’s claim with the plaintiff’s attorney before this action was commenced, the defendant said he was willing to meet the plaintiff’s agent on notice at Troy, but he would not do so for the same prices that he did at Rensselaer. Thus he sought to substitute a new ■•arrangement for the contract in question, and evidently one that the •plaintiff was under no obligation to accept.

By thus voluntarily putting it out of his power to pay for the whisky as he had agreed to do, and breaking his contract in such respect, a demand by the plaintiff for the horse hire at Rensselaer was not necessary (Crist v. Armour, 34 Barb. 378; 9 Am. & Eng. Ency. of Law [2d Ed.] 210); and the defendant became liable to pay the amount still owing plaintiff in money (N. Y. News Publishing Co. v. National Steamship Co., 148 N. Y. 39, 42 N. E. 514).

The defendant on the trial testified: “I know that the agent of the •plaintiff knew three months before I moved that I was going to move; •that he knew when he sold me the whisky that I was not going to stay in the place where I then wasand from this he argues that no im•plication arises that the contract was to be performed in Rensselaer. But the defendant does not testify that anything was said between the parties on that subject, nor that the agent knew where he was going, nor when he intended to move. Such a statement is altogether too Indefinite to warrant the inference that they contracted with reference to the fact that the defendant was going to “Eagle Mills,” and that the performance must be had there instead of at Rensselaer, and, unless "it raises that inference, it is insufficient to affect the plaintiff’s right to ■demand performance at the place where they were then contracting.

Moreover, if it be conceded that such evidence is, in effect, that the •agent knew he was going to Eagle Mills, and contracted with ref•erence to his furnishing the horse hire there, the justice was fully justified in disbelieving so incredible a story. ;I conclude that the de-cision of the justice was correct; Concededly, the defendant still owed $24.94 upon the whisky which had been delivered to him. He had put it out of his power to pay for it in “horse hire,” as contemplated by the - contract, and so he was liable to pay for it in cash.

The County Court had no authority to order a new trial, unless the judgment in the court below was against the weight of evidence. See Code Civ. Proc. § 3063. Evidently, such judgment is not against the weight of evidence, but, on the contrary, is supported by it. I conclude that the judgment of the County Court should be reversed, and that of the Justice affirmed.

Judgment oí the County Court reversed, and that of the Justice’s Court affirmed, with costs to the appellant in the County Court and in this Court. All concur; KELLOGG, J., in result.